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HUGE TCPA NEWS: FCC Holds System That Text Platforms Requiring Manual Number Entry Are Not ATDS Under TCPA

A couple of big rulings from the FCC yesterday. The first pertains to text messages with the FCC granting P2P Alliance’s petition concerning automated text message platforms.

The FCC holds squarely:

if a texting platform actually “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time” and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number, as suggested in the P2P Alliance Petition, then such platform would not be an “autodialer” that is subject to the TCPA.

This is big news for folks using text platforms that allow template-based, fast-paced texting, on a one-to-one (i.e. click-to-text) basis so long as the phone number is entered each time.

Notably the FCC specifically rejected the NCLC’s position that such platforms would enable marketers to spam people’s phones:

The TCPA does not and was not intended to stop every type of call.


The FCC also doubled-down on its previous rulings that express consent is to be presumed anytime the consumer provides the number directly to the caller:

The Commission has repeatedly made clear that “persons who knowingly release their telephone numbers” for a particular purpose “have in effect given their invitation or permission to be called at the number which they have given” for that purpose, absent instructions to the contrary.

The ruling is available here:– P2P Alliance Ruling

Notably the petition was filed back in May, 2018 so the FCC may be working through its backlog of petitions–just as Commissioner O’Rielly implied it might be when he joined our podcast a couple weeks back.  (Thanks again for joining us Commissioner!)

BUT we saw a second TCPA ruling from the FCC yesterday as well–the Baron is covering that one–holding that PRIOR express consent must actually be obtained PRIOR to a call (even in the healthcare context) so it isn’t all good news for the TCPA defense. That said, it certainly looks like TCPA issues may be moving back to the top of the Commission’s agenda.

We’ll obviously keep an eye on this for you.

Editor’s note: I made some edits to this article at 9:07 am pacific to note the ruling may not apply to all click-to-text systems.

© 2022 Troutman FirmNational Law Review, Volume X, Number 178

About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...