FCC’s Ruling Regarding P2P Text Messaging Platforms

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of suppliers and customers of peer-to-peer (P2P) textual content messaging companies.” The Petition had requested the FCC to make clear whether or not texts despatched by way of its messaging platform had been topic to the TCPA restrictions on automated dialing. The FCC didn’t determine if the Petitioner’s messaging platform is an autodialer, because the document was not enough to take action. But it surely did make clear within the summary that, “if a texting platform really requires an individual to actively and affirmatively manually dial every recipient’s quantity and transmit every message one by one and lacks the capability to transmit multiple message with no human manually dialing every recipient’s quantity… then such platform wouldn’t be an ‘autodialer’ that’s topic to the TCPA.”

The Petition

The P2P Alliance had asserted that its messaging platform didn’t qualify as an ATDS as a result of it couldn’t “us[e] a random or sequential quantity generator” to “retailer or produce phone numbers to be referred to as.” As an alternative, it required “an individual to actively and affirmatively manually dial every recipient’s quantity and transmit every message one by one,” and it enabled customers to decide on whether or not to ship a ready script, modify the script earlier than sending, or draft distinctive message content material.

The Declaratory Ruling

The FCC first clarified “that the truth that a calling platform or different gear is used to make calls or ship texts to a big quantity of phone numbers isn’t determinative of whether or not that gear constitutes an autodialer.” As an alternative, “whether or not the calling platform or gear is an autodialer activates whether or not such gear is able to dialing random or sequential phone numbers with out human intervention. If a calling platform isn’t able to dialing such numbers with no particular person actively and affirmatively manually dialing each, that platform isn’t an autodialer and calls made utilizing it aren’t topic to the TCPA’s restrictions.”

The FCC defined that its ruling was rooted within the plain language of the statute. In gentle of the statute’s definition of an ATDS, it defined, “solely know-how that has the capability to retailer or produce numbers to be referred to as utilizing a random or sequential quantity generator, and to dial such numbers, is deemed to be an autodialer. Whether or not a sure piece of apparatus or platform is an autodialer activates whether or not it’s able to performing these capabilities with out human intervention, not whether or not it might make a lot of calls in a short while.”

The FCC closed by rejecting one commenter’s suggestion {that a} broad interpretation of the ATDS definition would deter “spammers” from utilizing P2P programs to “evade” the TCPA. It defined that “[t]he TCPA doesn’t and was not meant to cease each kind of name. Fairly, it was restricted solely to calls made utilizing an autodialer or a man-made or prerecorded voice. If a textual content platform isn’t able to storing or producing numbers to be referred to as utilizing a random or sequential quantity generator and dialing such numbers mechanically however as an alternative requires lively and affirmative handbook dialing, it’s not an autodialer and callers utilizing it are, by definition, not ‘evading’ the TCPA.”

Implications

The Declaratory Ruling is notable not just for what it determined but in addition for what it didn’t determine, no less than not explicitly. As our common readers know, this ruling comes within the wake of a number of federal appellate selections which have analyzed the statutory definition of an ATDS. It additionally comes in the course of the pendency of the FCC’s personal continuing on the difficulty, which was prompted by the D.C. Circuit’s choice in ACA Worldwide v. FCC, 885 F.3d 687 (D.C. Cir. 2018).For functions of this Declaratory Ruling, the FCC defined, it might merely “depend on the statutory definition of autodialer.”

If the Declaratory Ruling is any indication, nevertheless, the FCC is ready to hew carefully to the plain language of the statute, no matter whether or not that leaves some gear or calls past its attain. Certainly, it might not be unreasonable for defendants within the Ninth and Second Circuits to argue that this ruling implicitly rejects the seemingly limitless studying these courts have given to the ATDS definition. Whether or not trial courts in these Circuits would agree with that, or would defer to the FCC’s interpretation even when they did, is after all one other matter.

We’ll report again as these points proceed to develop.