June 24, 2021

Volume XI, Number 175

Advertisement

June 23, 2021

Subscribe to Latest Legal News and Analysis

June 22, 2021

Subscribe to Latest Legal News and Analysis

June 21, 2021

Subscribe to Latest Legal News and Analysis

Texting Post-Duguid: Can Consent Practices Change?

Providing business teams with advice for sending text messages can be nothing short of frustrating. For businesses used to sending email marketing, the laws for texting are unexpected. Unlike the CAN-SPAM Act, TCPA requires prior express written consent if autodialed messages are sent that contain advertising content. And unlike CAN-SPAM, TCPA has a private right of action. On its face, the recent Supreme Court decision in Facebook, Inc. v. Duguid seemed to bring good news. The decision suggests that companies may be able to send, in several circumstances, automated texts to databases of current customers without running afoul of TCPA. There are still areas of confusion, though.

As we reported in our sister blog, the Court clarified what had been an area of confusion for some time: what is an autodialer, or an “automatic telephone dialing systems” (ATDS)? The TCPA regulations define ATDS as equipment that “has the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers.” The Court ruled that to fall under ATDS, it was not enough that the equipment had the capacity to store numbers and to dial them automatically (as the Ninth Circuit before it had found). Instead, the equipment must either store or produce numbers using a random or sequential number generator.

The question, then, is whether a company’s texts are sent using technology that not only has the capacity but also actually stores or produces numbers using a random or sequential number generator. It is possible that company’s text campaigns may be sent using technology that only has the “capacity,” and they then fall outside of TCPA’s scope. On the other hand, the text campaign may be sent using technology that stores or produces numbers using random generators. If that is the case, then the campaign remains in-scope for TCPA.

Putting It Into Practice: This decision significantly narrows a company’s potential exposure under TCPA. The law does not, however, modify requirements around getting consent to send text messages that might exist at a state level, nor will companies always know if the vendors they are working with are, in fact, avoiding using an ATDS. As such, companies will still want to ensure that their express written (signed) consent mechanisms are in place when collecting cell phone numbers for marketing campaigns.

 

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume XI, Number 125
Advertisement
Advertisement
Advertisement

TRENDING LEGAL ANALYSIS

Advertisement
Advertisement
Advertisement

About this Author

Liisa Thomas, Sheppard Mullin Law Firm, Chicago, Cybersecurity Law Attorney
Partner

Liisa Thomas, a partner based in the firm’s Chicago and London offices, is Co-Chair of the Privacy and Cybersecurity Practice. Her clients rely on her ability to create clarity in a sea of confusing legal requirements and describe her as “extremely responsive, while providing thoughtful legal analysis combined with real world practical advice.” Liisa is the author of the definitive treatise on data breach, Thomas on Data Breach: A Practical Guide to Handling Worldwide Data Breach Notification, which has been described as “a no-nonsense roadmap for in-house and...

312-499-6335
Advertisement
Advertisement