Supreme Court, FCC issue key decisions for text messages for 2020 election season

Supreme Court, FCC issue key decisions for text messages for 2020 election season

TCPA will continue to be in force, but FCC won’t consider “peer to peer” text messages a violation

Jason Torchinsky, Steve Roberts, Phillip Gordon

Two key decisions coming just days apart will shape the landscape for text messages during the 2020 election season and beyond. On July 6, the Supreme Court issued a decision confirming that the Telephone Consumer Protection Act (TCPA), which bans calls and text messages to cell phones sent via an automated telephone dialing system (ATDS) unless the recipient expressly consents to receive them, can withstand a constitutional challenge and will remain on the books. The decision modifies the TCPA to strike an unconstitutional exception permitting calls and text messages using an ATDS if made for the purpose of collecting debts owed to the government. Eleven days prior to that decision, the Federal Communications Commission  (FCC) issued a declaratory ruling that confirmed its interpretation that a text message sent using a platform that requires a person to manually send each text message one at a time, and enables the sender to exercise discretion regarding the content and other features of the text messages, does not violate the TCPA. Taken together, these signal a clear path for best practices for campaigns and tax-exempt organizations wishing to engage in text message campaigns with supporters during this election season.

The Supreme Court decision, issued in Barr v. American Association of Political Consultants, comes in a case in which the AAPC asked the Supreme Court to invalidate the entire TCPA due to what it claimed was an unconstitutional exception for calls and messages sent via ATDS for the purpose of collecting debts owed to the government.[1] A majority of the Court, across plurality opinions, agreed that the exception was unconstitutional due to its placing a content-based restriction on speech. However, the Court remedied the unconstitutionality of the exception by severing the exception, leaving the TCPA to stand without the express permission for calls and text messages sent via an ATDS for the purpose of collecting debts owed to the government. As a result, messages sent via an ATDS are broadly prohibited, regardless of content, unless the recipient has expressly provided consent to receive them. As the Court stated, “plaintiffs still may not make political robocalls to cell phones, but their speech is now treated equally with debt-collection speech.”

Despite the TCPA continuing to be in force, the FCC’s declaratory ruling in response to a 2018 petition from the P2P Alliance signaled its interpretation of an issue on which courts have largely been split – namely, whether a text message sent via a P2P system was considered to be sent via an ATDS, and therefore was in violation of the TCPA. There, the FCC stated that “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls or texts made using it are not subject to the TCPA’s restrictions on calls and texts to wireless phones.” It further held that “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 . . . then such platform would not be an ‘autodialer’ that is subject to the TCPA.” Simply stated, if a political organization or tax-exempt organization wishes to send texts to supporters this year, it would be well-advised to do so using a P2P system described in the FCC’s declaratory ruling.

It should be noted, however, that the weight given the FCC’s interpretation of an issue is a much litigated issue. Additionally, a handful of circuits across the country have recently established precedent that interprets the definition of an ATDS to include some P2P systems. It is unclear how those circuits will address the FCC’s declaratory order in light of their recent rulings.

Given that the Supreme Court did not address the definition of an ATDS in its ruling in Barr,  it becomes more likely that the Supreme Court could address the precise definition of what is considered an ATDS through a petition pending with the Court in Facebook Inc. v. Duguid, Docket No. 19-511.

The foregoing article is for informational purposes only and should not be considered legal advice.

[1] Holtzman Vogel, PLLC serves as outside counsel to American Association of Political Consultants.