Last week, a group of U.S. House of Representatives Democrats introduced the RoboText Scam Prevention Act (“RSPA”). If passed, the bill would amend the Telephone Consumer Protection Act (“TCPA”). As predicted in the wake of the Supreme Court’s decision in Facebook v. Duguid, the RSPA is Congress’s attempt to clarify the TCPA by proposing modernizations that would address 21st century dialing technologies that were not in place when the law was first passed, but the bill’s broad definitions could create more confusion than clarity if it is passed without further changes.
Clarified & Expanded: “Automatic Telephone Dialing System” (“ATDS”) Definition
As a reminder, in Facebook v. Duguid, the Court unanimously narrowed the scope of the TCPA by holding that for telephone dialing equipment to constitute an “automatic telephone dialing system” (“ATDS”) under the TCPA, “a device must have the capacity either to store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator” (e.g., 777-0000; then 777-0001; then 777-0002, and so on). This meant that a computer system or cell phone that merely stores phone numbers, but does not generate those numbers randomly or sequentially, is not an ATDS.
The RSPA strikes at the heart of the Duguid opinion’s holding by eliminating the requirement of “using a random or sequential number generator” from the ATDS definition. The bill also expands the ATDS definition to explicitly cover text messages alongside calling. The definition also clarifies the method of dialing or text messaging under the ATDS definition to broadly cover automatic dialing or text message delivering to numbers stored or produced in an ATDS.
New Addition: Safe Harbor for Reassigned Numbers
Another common challenge for organizations deploying text message programs is that millions of wireless numbers are reassigned each year from one user to another—a subscriber might change phone numbers or simply abandon his or her assigned phone number. Messages to reassigned numbers have presented significant legal risk for organizations sending text messages. The RSPA would require Federal Communications Commission (“FCC”) to maintain a Reassigned Number Database to help callers determine whether a telephone number was permanently disconnected or reassigned after the date prior express consent was obtained. The bill provides a safe harbor for callers who make calls or send text messages to a recycled phone number if the previous subscriber provided prior express consent and the entity placing the call checks Reassigned Number Database first to determine that the number was not reassigned to a new person after consent given.
New FCC Rule-Issuing Direction: Modernizing Key Definitions
Last but not least, the RSPA directs the FCC to issue a rule defining key TCPA terms – including “automatically,” “dial,” “send” and “charged for the call.” Notably, the bill directs the FCC to define these terms “with consideration given to modern dialing practices and consumer preferences.” Clear definitions for these terms are critical to understanding the true scope of the RSPA’s amendments to the TCPA. Without clear definitions, the proposed amendments would run the risk of prohibiting all personal texts and calls from cell phones, which is clearly not the intent.
If the bill passes, companies should look out for the FCC’s new key TCPA term definitions to help guide their compliance procedures and better align to the major changes proposed to the TCPA.
The Bottom Line
The proposed TCPA amendments expansively broaden the ATDS definition, while modernizing the TCPA to address text messaging and reassigned phone numbers more clearly. Although the RSPA seeks to clarify the definition of ATDS, the broad coverage proposed could create more confusion if the FCC does not create tailored definitions for commonplace terms like “dial” and “send.”
Even without an amendment on the federal level, the increasing number of cases being brought under state telemarketing laws, means that the use of marketing by phone or text message is still a robust issue that companies should monitor carefully. Many states have “mini-TCPA” laws with broader definitions that potentially make it easier for plaintiffs to bring complaints in court. Companies that engage in telemarketing at any level would be wise to create robust compliance programs that obtain documented affirmative consent before engaging in phone or text campaigns, monitor the potential reassignment of subscribers’ phone numbers, and honor recipients’ opt-out requests promptly.
We will continue to monitor these developments for any updates. Subscribe to RopesDataphiles.com for updates.