Posted by Chris Alarie on Wed, 03/15/2023 - 13:43
The Supreme Court’s decision in Facebook v. Duguid changed many aspects of Telephone Consumer Protection Act (TCPA) compliance. Since the calls at issue in that case were triggered text messages, the effects of those changes are particularly significant for text message marketing. However, while the decision may have lessened some of the risks for text marketing, other risks remain and new ones have arisen in the years since the decision.
Facebook’s Effect on Texting and Autodialer Regulations
The Facebook case originated from text messages that Noah Duguid received from Facebook informing him that his account had been compromised. However, he did not have a Facebook account and filed a TCPA class action alleging violations of the law’s requirement that marketing calls made with an automatic telephone dialing system (ATDS) be made with the prior express written consent of the called party.
These sorts of text message based ATDS allegations had made up a large, costly share of TCPA class actions in recent years, particularly following the Ninth Circuit's Marks v. Crunch San Diego decision. When SCOTUS ruled in favor of the narrow, statutory ATDS definition in Facebook, most analysts predicted it would spell an end to these sorts of class actions. With a few notable exceptions, that prediction has generally held true. However, a reduced risk of TCPA class actions stemming from ATDS texting claims does not mean that text messaging carries no litigation risk.
Texting and the DNC List
Another prediction following the Facebook decision was that the narrowing of ATDS claims would lead to a resurgence in Do Not Call (DNC) List claims. This prediction has also largely proven to be accurate, with multiple large TCPA settlements stemming from DNC violations. In particular, plaintiffs seem to be increasingly focusing on claims that callers are not properly honoring opt-outs or following rules for internal DNC lists.
Because the TCPA’s DNC provisions are separate from its ATDS rules, the Facebook ruling does not give any particular protection for text messages that violate the DNC list or text campaigns that don’t follow internal DNC rules. State-level DNC laws also do not discriminate between calls or texts. In fact, the most significant increase in texting liability following Facebook is at the state level.
Florida and Oklahoma Mini-TCPAs
Two months after the Facebook decision, Florida Governor Ron DeSantis signed amendments into law that dramatically transformed the state’s telemarketing regulations into something like a mini-TCPA. This amended Florida Telephone Solicitation Act (FTSA) mimics the TCPA’s penalties, private right of action, and restrictions against autodialed marketing calls made without consent.
Unlike the TCPA, the FTSA does not make any attempt to define what constitutes an autodialer. As a result, that has left a wide opening for plaintiffs to claim autodialer violations and those claims have largely taken the form of class actions stemming from text messages. In essence, the FTSA has replicated the sort of TCPA litigation that proliferated between Marks and Facebook but at the state level.
In May 2022, Oklahoma Governor Kevin Stitt signed similar telemarketing legislation into law. The Oklahoma Telephone Solicitation Act (OTSA) is nearly identical to the FTSA and carries the same text messaging risks. Other states have introduced but not yet passed similarly expansive legislation and it seems likely that these mini-TCPAs will proliferate in some form.
The disparity between how the TCPA regulates text messaging and how states such as Florida and Oklahoma regulate it is the most important illustration of the current state of text messaging. The Facebook ruling has made texting the safest channel the federal level while the FTSA and OTSA have made it the main target for litigation in Florida and Oklahoma. Meanwhile, courts continue to define other aspects of text message regulations such as whether or not business-to-business (B2B) texts are subject to the TCPA (they are) or if texts are robocalls (they aren’t). Essentially, the state of text messaging post-Facebook is: it’s complicated.