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.