Derek: Hi everyone, Derek Johnson with Tatango.com.
I’m at Innovista Law, here in Washington D.C.
I’m sitting with Joe Bowser, who is part of the TCPA Defense Force here at Innovista
Law.
One of the questions, Joe, we get asked all the time is, does the TCPA apply to text message
marketing?
I know that’s kind of, like a big question, but maybe you can help our readers and watchers
figure that out.
Joe: Well, you’re right to get it, because the law, the TCPA, doesn’t ever mention
text messages or SMS.
Derek: So you’re saying like, the actual law, does not say text messaging one bit in
the TCPA?
Joe: Never once.
Derek: Okay, maybe that’s causing some confusion, ’cause…so what does it say?
Joe: If you’re reading the law, I have other sleep aids, but, what it refers to calls and
it refers to faxes or facsimiles.
Derek: So, in the law, it says, calls and faxes.
Joe: Correct.
Derek: Okay, and so I’m guessing…then why does it apply to text messages?
Joe: Because the FCC and the courts have interpreted Congress’ reference to calls, to include
text messages.
Now here’s a little fun fact for you, for the TCPA nerds out there: Congress passed
the TCPA in 1991.
The first text messages wasn’t sent until the first commercial text messages wasn’t
sent until 1993.
Derek: Okay, so they didn’t even know it was coming, essentially.
Joe: That would require a pretty good crystal ball in 1991 when they passed the TCPA to
know about it in ’93.
Obviously, the technology was floating around, but, Congress isn’t known for being, you
know, terribly savvy in underground technology circles.
But in any event, what is absolutely true is that the FCC and the courts unanimously
treat a call as synonymous with text message.
So everyone should assume that your any SMS campaign triggers certain TCPA issues.
Derek: Okay, so, I think that puts it to bed for people out there is, just because it says,
the auto-dialing and the faxing, you can, you can pretty much assume, or the courts
have assumed, that that means text messaging as well.
Joe: A call is a text, a text is a call.
Derek: Okay, so no if, ands, or buts about that.
Joe: Nope, you should go to bed at night thinking the TCPA applies to SMS.
Derek: So, where is the confusion coming from, because this is a question we get asked all
the time at Tatango, you know, does the TCPA apply to text message marketing?
Seems like it’s pretty cut and dry, so where is maybe some of this confusion coming from?
Joe: Well, another part of the confusion, apart from whether a call is SMS, another
part of the confusion comes from how you send the SMS with modern technology, right?
So, you can use Tatango, for example, to send your SMS, and you’ve never touched a phone,
right?
So the original evil, if you will, that the TCPA was designed to prevent were predictive
dialers.
So, there was like a phone device that was just generating phone calls, they would just
go sequentially.
You know, you’ve got a ten digit number, and you’d start at 1000, and 1001, and 1002,
right?
And you’d just, this machine would continue to make phone calls until they got someone
on the phone.
Derek: Interesting.
That’s annoying.
Joe: It is annoying, and against the law.
Derek: Thank God for the TCPA.
Joe: Exactly.
But, the Tatango platform, you know, doesn’t look anything like a predictive dialer, it
doesn’t look like anything like our smartphones.
So, people think, well, I’m just, I’m using this like e-mail if you will, right?
So it feels like I’m communicating by e-mail, so why would this Telephone Consumer Protection
Act apply when I’m not using a telephone?
Derek: Cause it’s not like a predictive dialer, it’s not a telephone, essentially.
Joe: Right, you have a set list of numbers, from whom you’ve hopefully got consent.
And you’re talking to them about things that they want to talk about, and you’re
using modern technology that looks like a computer.
But, given the expansive definition of an auto-dialer that the FCC has given to that
term, it is safe to assume that unless you’re using a rotary phone, you should assume that
a court is going to consider an SMS platform an auto-dialer.
It’s not always true because courts have developed and the FCC has developed certain
tests around the extent to which human intervention prevents certain technology from being an
auto-dialer.
And so you can architect a system to avoid a finding that a particular system is an ATDS,
but it’s better to go into the game assuming, if you’re going to be engaging in SMS marketing,
you’re using an auto-dialer.
Derek: Just keep it simple, easy to understand.
Maybe they should change an auto-dial to auto-texter or something, in the TCPA, make it very clear
for everybody.
Joe: Well, the TCPA definitely needs a refresh, in many respects, and that would be one where
it would help avoid a lot of this confusion.
Derek: Yeah, I think most brands want to follow the TCPA, I think it just, the miscommunication
and kind of, looking at things where it says auto-dialer, well that doesn’t apply to
me because I’m sending text messages.
So it creates a lot of confusion sometimes.
Joe: Right, and you’ve got regulatory overlays, right, where the FCC puts expansive definitions
on key terms, like auto-dialer, and then you’ve got the courts struggling with those expansive
definitions.
You’ve got some courts that see these brands struggling with compliance and they want to
have some reasonable limits on this nebulous standard that the FCC has given it, and then
you’ve got other courts that say, this is the agency that was tasked with implementing
the rules, if anybody wants a change in these rules, you should go to Congress.
That’s how our democratic process works.
Derek: And have them change it.
Joe: Have them change it because they’re the one who makes the law.
I enforce the law.
So, even if I have to hold my nose to enforce this nebulous definition of auto-dialer, under
my view of how our government works, I’m going to push this back on either the agency
that Congress tasked with pushing out these rules, or Congress itself to bring its agency
in line with what these brands ought to be compliant with.
Derek: Interesting, but from a general overview kind of standpoint, text messaging does apply
to the TCPA, you should follow everything in the TCPA if you’re text messaging, except
you have exemptions and stuff like that.
But that’s pretty much kind of the end game right here is, text messaging does apply,
even though it says nowhere in the TCPA, text messaging.
Joe: Exactly.
Derek: Okay, I’m Derek Johnson, with Tatango.com, and I’m here at Innovista Law with the TCPA
Defense Force, and Joe Bowser, and we are talking TCPA compliance.
And essentially we’ve, I think, answered the question now, once and for all, text messaging
does apply to the Telephone Consumer Protection Act.
Joe: Answer is yes.
Derek: Thanks for watching our video today.
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