How Might the Supreme Court Decision in Facebook v. Duguid Impact Text Message Marketing?
On April 1, 2021, the United States Supreme Court issued an opinion in Facebook v. Duguid interpreting the Telephone Consumer Protection Act (the “TCPA”) to narrow its scope. This is big news for SMS messaging companies because the Supreme Court rarely takes up matters relevant to the messaging industry, let alone narrows its interpretation of the TCPA. The ruling represents a victory for the messaging industry.
The TCPA is a statute that Congress passed in 1991 to address unwanted telephone marketing robocalls. The law protected consumers by prohibiting the use of automatic telephone dialing services (an “autodialer”) to reach customers without their consent. The law was passed before mobile phones were commonplace, but was later interpreted to apply to text messages. Since then, brands leveraging text messaging have been required to comply with the TCPA.
A threshold issue for the TCPA to apply is that an autodialer must be used to place the calls (or send the texts). If a system does not qualify as an autodialer, the TCPA does not apply. Over the years, courts have interpreted the TCPA differently, leading to a lack of clarity as to what qualifies as an autodialer. The Supreme Court’s ruling clarified that “to qualify as an autodialer under the TCPA, a device must have the capacity to either store a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential number generator.” Essentially, the Court narrowed the requirements of what an autodialer is, thereby reducing potential TCPA exposure and liability.
All in all, this is good news for the text messaging industry. The Court’s ruling narrows the scope of the TCPA, thereby potentially decreasing companies’ liability and hopefully reducing the number of class action TCPA lawsuits.
It is important to note that the Supreme Court’s ruling does not change the TCPA’s emphasis on consumers’ consent prior to receiving calls or texts. The need to obtain a customer’s consent is also stressed in the carriers’ policies, the CTIA’s industry guidelines, and messaging best practices. mGage will continue to advocate for messaging practices that further the industry’s best interest.