As four recent lawsuits
show, the class actions bar has developed quick reflexes where possible
Telephone Consumer Protection Act ("TCPA", 47
USC Sec. 227) violations are concerned. The new complaints were filed
in April and May and appear to involve text messages sent in April.
Besides demonstrating the efficiency of the plaintiffs' lawyers, the new
actions reflect the legal perils of communicating with customers
through text messaging or offering services that facilitate text
messaging. They also underscore how poorly some of the TCPA's provisions
serve the interests of consumers and legitimate businesses.

One pair of lawsuits
accuses Twitter and American Express Centurion Bank of using text messages
to acknowledge customers' requests not to receive further text
communications from those companies. (The plaintiffs previously had opted
in to the receipt of such communications from those companies.)
Confirmation messages of this kind benefit consumers and are endorsed as a
best practice by the Mobile Marketing Association. Nonetheless, the
complaints allege that those messages are violations of the TCPA, compensable
at the statutory damages rate of $500 per violation.

The other lawsuits
(brought against Google, a Google subsidiary called Glide, Twilio and GroupMe)
involve group texting services, which permit a customer to send simultaneous
text messages to a number of recipients designated by the customer. The
complaints allege that under the TCPA, consent must be obtained from each recipient
before such a group message may be sent. There is no question that
individual senders could have sent personal messages to the same recipients
without obtaining prior consent, simply by dialing the recipients' numbers
individually. In other words, it apparently is lawful for a consumer to
send text messages inefficently, but not for a business to help that consumer
send the same text messages efficiently.

All of these new lawsuits
are based on the TCPA's "autodialer rule," which prohibits any person from
using an automatic telephone dialing system to make a non-emergency call
to a mobile device unless the sender has first obtained the recipient's prior
express consent to place the call. Congress adopted the rule to keep
telemarketers from using random and sequential number generators to run up
consumers' cellphone bills. In 1991, when cellphones still
were somewhat exotic and subscribers paid substantial per-call fees for
incoming mobile calls, the rule made some sense. However, the deployment
of ubiquitous, low-cost mobile services has made the rule an
anachronism.

Without commenting on the
merits of the plaintiffs' complaints under the present TCPA, the fact that the
practices described could give rise to damages claims at all confirms that
the autodialer rule should be removed from the TCPA, at least as it
applies to calls placed to mobile devices. Without the autodialer rule,
the TCPA (and the Federal Trade Commission's Telemarketing Sales Rule) still
would prohibit telemarketing calls to numbers registered on the national
do-not-call list, and still would prohibit the delivery of calls containing
artificial or prerecorded voices without the prior express consent of the
called party. But, the TCPA would not require a company to
obtain express consent before using a text message to acknowledge a
customer's opt-out request, and would not require a consumer to obtain
multiple consents before using a texting service to send personal messages
to a group of friends.

The defendants in the pending cases might have good
defenses, and companies in similar circumstances might manage to structure
their services in ways that reduce the risk of facing similar complaints.
The best long-term response to these lawsuits and their ilk, however, is to
reform the TCPA.