Derek: Hello, everyone.
Derek Johnson with tatango.com.
I'm here with TCPA attorney, David Carter.
And we're answering your questions from the internet.
So, actually we are in DC right now.
Yesterday was the midterms.
And a lot of people right now are talking about text messaging.
And they're talking about text messaging because they've received text messages from a candidate,
and maybe now, you know, somebody that has won or lost.
And they're wondering how they're getting these text messages.
Because there is a thing called the TCPA.
And the TCPA, at least as it applies to mass text messaging, you have to opt in and go
through a usually double opt-in, and it's a pretty, you know, rigorous process.
You know when you opt-in for text messages on a short code.
But a lot of people, a lot of consumers, friends, and family, are getting text messages from,
it looks like people on behalf of a political campaign or political candidate.
Are these messages in violation of the TCPA or do, for some reason, political message
exempt from TCPA?
What's going on here?
David: Yes.
So, I think, let's start with the last question first, right?
Derek: Okay.
David: So, political messages are not exempt from TCPA.
However, political messages are not marketing messages, so they're not trying to sell a
product or service, and so the level of consent within the TCPA is slightly lower than what
you might be referring to when you're talking about a brand sending out a coupon, or doing
that type of mass text messaging where it has to be written consent.
Derek: Okay.
David: So, on political type messages, because, again, they're not marketing a service, the
consent can be expressed, but the FCC has said that might be something less than the
full written consent process.
Derek: Okay.
David: So I think there's probably a couple different scenarios that we're seeing, and
it's hard to sort of generalize political messages all in one category in one way.
But the first is, you know, I know from personal experience and others, that sometimes you
may make a contribution to a political party, you may make a contribution to a political
candidate.
And in the course of that process of making the contribution, you may in fact be checking
a box, or doing other things that does permit them or give consent for the party or the
candidate to then send you updates and messages about their campaign, right?
Derek: So that's kind of the consumer's giving up the phone number during some kind of normal
course of business with that consumer.
David: Right.
And we'd say...
Derek: I guess normal business.
David: So, a voter.
A voter or, you know, constituent may at some point in time engage, in one way or another,
with a campaign, and they may, in that process, express willingness to be contacted by the
campaign and to get updates from the campaign.
And because it's not required that they are these written consents, right?
The level of way they give consent might just be providing their phone number to the campaign,
or doing other things like that during the course of say signing up to volunteer or do
things.
Derek: So it's not as rigorous as going into Target or Best Buy and you have to text a
keyword, then get a message back, consent by replying yes.
It is a little less of a threshold.
David: There is gonna be a lower threshold for political campaigns.
You still have to have consent, and importantly it's still the obligation of the campaign,
if anyone challenges that consent for those types of messages, it would still be the campaign's
obligation to show that they had received messages.
Derek: Okay.
David: So that's one category, right?
Derek: Yeah.
David: One big category of maybe you did have some engagement and that's why you're getting
this message.
Derek: But it doesn't seem like, at least right now, the people that, you know, friends
and family, it seems like it's coming out of kind of nowhere, from people they've never
heard from.
David: Right.
Derek: If you're saying that there had to be consent, or they had to give up the phone
number, I'm hearing from people they've never donated to a political candidate but they're
getting, get out the votes, type text messages, so, wouldn't those be in violation the TCPA?
David: So, then we're gonna talk about the second category of messages, right?
Derek: Okay.
David: And the second category of messages is coming from different applications and
service providers that are facilitating what is kind of generically referred to as peer-to-peer
texting, right?
Derek: Okay.
P2P.
That's sometimes, yeah.
David: Yeah.
P2P, peer-to-peer, to kind of think about it.
So, you're talking there about not mass automated text messages, but you're talking about something
that is often reflective of more of a conversation between two people, right?
Derek: Okay.
David: And so, when I've seen a lot of these messages, it will say like, "Hey, David, this
is Sally."
And I may not know who Sally is, but it's sort of expressing to me that there's supposed
to be an individual that is beyond behind this message.
And, so the important thing there to understand is that the Telephone Consumer Protection
Act applies to text messages that are sent using what's called an autodialer or an ATDS
is the definition, or the acronym that you often hear.
And so, the first category of messages that we talked about, I'm assuming on that category
of messages that the campaign might be using an ATDS, an autodialer, to send out these
messages to a lot of people at one time.
Derek: So they're clicking send in a computer system and it goes out to 10,000, 10 million
people, but they have some sort of consent.
David: Correct.
Derek: It might not be as strict as Best Buy.
David: Right.
Derek: But, given their phone number.
David: They have at least been some affirmative consent, right?
Derek: Okay.
David: So, those sort of bulk messages you're saying, are using an autodialer and there
should be some, there should be consent behind it.
And then we're talking about the second category being these more personal messages, P2P, peer-to-peer
messages, where the way that those are structured is they're intended to not be using an autodialer
as defined by the statute, and therefore would be in a realm outside of the TCPA.
Derek: So they might be using like a program, but the fact that it's not mass texting or
autodialing, usually these apps or programs it is a person, maybe not their friend, but
a person...
David: A person, right.
Derek:...that is clicking send on each message to each individual person.
Maybe they're inserting their name, they're customizing the message, it's making it easier
for people essentially to text message other people, but not on a mass text messaging scale.
David: Yes.
So that's at least the theory behind why there's been what we've seen is a rise, particularly
in the midterm elections, in people receiving text messages of a political campaign nature,
and then wondering, "Well, how did I get there?"
Derek: And them being their personal messages, because they're supposed to be P2P.
David: Right.
And that's why you will see, typically, you'll see in these messages, there's your name might
be used, so they're trying to make it personal to you.
And someone else's name is also being used to identify who's sending it to you, right?
It's just supposed to be this real person sending a real message to you.
Derek: Not the campaign, it's a person that works for the campaign.
David: Right.
A volunteer of some sort that's kind of...
Derek: The campaign, if they're messaging, that really is a mass message because it's
coming out and going to all the people and the members, or whatever, supporters.
But then the people that work in the campaign, that's more of a P2P, that's like me taking
out my phone and texting you.
That doesn't fall under the TCPA.
David: Exactly.
Exactly, right.
So, that's what, it's supposed to be that process, right?
Where you can...
Derek: So it's speeding that essentially.
Just making it easier?
David: Yeah.
You can text me, you can text a random person who you don't know, and you're not gonna be
covered in those circumstances by the TCPA because the TCPA is limited to messages sent
using an autodialer.
So we have this, again, two different categories of different types of messages that are being
sent out on, you know, for political purposes.
And you have to understand really the technology behind the message to then decide whether
or not the TCPA is applicable or whether it's a really truly personalized message that's
not subject to the TCPA.
And I think that what we will see is a continued evolution of this question which is a question
that, frankly, is up in the air right now that is being evaluated by the courts and
by the Federal Communications Commission of what exactly is the breadth of the definition
of an autodialer.
And does it extend perhaps further into these types of P2P messages, or is it much more
restrictive and it's only when you have a really long list and you press send one time
and, you know, thousands of messages go out all at once.
And so that debate is a debate that is continuing to happen in the courts, and again, at the
FCC, and so it's something where what may be permissible today may not be considered
permissible tomorrow.
Derek: On the P2P side, because it has been established, you know, the nonprofit mass
text messaging, or big brands like Best Buy text messaging.
Those rules have been established, the consent, whether they're A2P or P2P, they're both A2P.
It's this P2P thing that is kind of new, unknown yet, and what the FCC needs to make rulings,
court needs to make rulings.
But at this point it is still unknown.
David: Yeah.
I don't think that there's been...I think there might have been a couple of courts that
have looked at this.
I'm not aware of appellate courts, and kind of it reaching the highest levels of consideration
where we can say with definitive, you know, make a definitive assertion about which of
these programs are covered by TCPA, which ones are outside of the TCPA.
I think this is an area that we are going to continue to see evolution, and we're going
to continue to see kind of, even potentially an ebb and flow as different arguments get
brought forward.
And frankly what will be, I believe, and I've heard from some reporters and others that
are covering this issue now, it's gonna be, I think, very important with the level of
consumer pushback is, or voter pushback is.
And if a lot of people start complaining about these types of messages, then you maybe see
more likely that the FCC will step in and say, you know, the TCPA is going to extend
to those types of messages as well.
So I see this as kind of an area, again, where the technology is a bit further out than where
the law and regulations are.
And we're gonna have to see where it all shakes out at the end of the day.
Derek: Okay.
So really, it's all up in the air.
But I think that answers the question of why people are getting these text messages.
Everything, from the Best Buy to the mass text messaging from nonprofits, or political,
all the way to kind of P2P, it looks like it's coming from somebody you may know or
may not know.
And why, you know, why it's happening.
Because it really has just started kind of happening, and why, you know, these brands
and why these political candidates are thinking that it's okay.
David: Yeah.
I think we saw, you know, we started to see some of this in the 2016 election cycle, right?
Derek: Yep.
David: But I do think that there has been, at least antidote relief from my own personal
experiences, has been a really ramp up of use of this technology in the 2018 midterms.
And the question will be whether that creates a big pushback from individuals that then
causes the FCC or even Congress to kind of step in and try to rein in the use of the
technology in some way.
But for right now, I think they have a solid legal argument that they're outside of the
TCPA with some risk that some courts are not going to understand it and may not agree with
it.
Derek: I think everybody knows, text messaging 99% open rates.
It's a great way to, you know.
David: It's a great way to reach people, right.
Derek: Exactly.
No matter if you're a politician, all the way to one of the big box retailers.
Just depends on how you do it.
Okay, well, that is very interesting.
Hopefully that clears up a lot of the questions out there, especially just coming off the
midterm, and people receiving these text messages, and as we head into 2020.
I think you're gonna see a lot of these messages, so you're gonna understand why you're getting
them and kind of how the laws applied to them or may not apply to them.
Anyway, great discussion.
I think very, very relevant right now.
Luckily, I have a TCPA attorney to help me out with this, David Carter here.
And my name is Derek Johnson with tatango.com.
And if you guys have any question, maybe you get a text message and you're confused to
why you got a text message, or a does the TCPA apply?
Definitely let us know and maybe we can help you on one of these videos.