When the Telephone Consumer Protection Act (TCPA) was passed into law in 1991, one of its primary purposes was regulating the then-current practice of sending junk faxes. In the intervening 29 years, telecommunications technologies have dramatically changed (several times over) but the law that is the centerpiece of federal telemarketing regulations has remained largely the same. As a result the bulk of the responsibility for adjusting telemarketing regulations to modern technology has fallen to such mechanisms as Federal Communications Commission (FCC) rulemaking and federal court opinion. A recent district court decision provides evidence of how this works.
This case—Saunders v. Sunrun, Inc., Case No. 19-cv-04548-HSG, 2020 U.S. Dist. LEXIS 144053 (N.D. Cal. Aug. 11, 2020)—involves the TCPA’s consent requirements for text messages. Under normal circumstances, marketing texts would require express written consent for any text messages sent for a marketing purpose. And the specific text message at issue in this case, viewed without context, would certainly seem to be a marketing message. Additionally, since the defendant did not have the plaintiff’s written consent, the message would seem to violate the TCPA.
The defendant, a solar power provider, sent the plaintiff a message with a link to an online form, providing information so that the defendant could provide them with a quote for their services. However, this message was sent by Sunrun in response to a customer inquiry. The defendant argued that the fact the message was answering the customer’s inquiry, it should be considered an informational message rather than a marketing one. The court agreed with this, relying in part on the FCC’s 2015 RILA Declaratory Ruling.
The defendant ultimately lost its motion to dismiss the case because the plaintiff had explicitly requested not to be contact by text message. But on the question of how to regulate a message with marketing content that was sent in response to a customer inquiry, this combination of FCC rulemaking and court opinion provided the sort of clarification that is impossible to get from the nearly three-decade-old text of the TCPA itself.
