The landmark Supreme Court decision regarding Facebook’s practice of sending unwelcome text message security alerts to cell phones associated with compromised accounts has provided much-needed clarity about whether sending unwanted telemarketing texts violates the Telephone Consumer Protection Act of 1991 (“TCPA”).
The TCPA prohibits the use of an “automatic telephone dialing system” (“ATDS”) to make or send telemarketing/advertising calls or text messages, without a consumer’s prior, express written consent.
An ATDS, as defined by the TCPA is equipment that can:
- store or generate telephone numbers to call, using a sequential or random number generator
- dial such numbers
A random or sequential generator has generally been thought to choose numbers randomly and then dials them sequentially without any human intervention. Alternatively, equipment is not considered an ATDS if it cannot initiate a call or send a text message without being manually dialed. There has been some confusion over the definitions of ATDS. Some courts require that an ATDS has the current capacity to autodial, and must store or dial numbers using either a random number generator or sequential number generator.
While the decision is a victory for Facebook, it will also favor consumers — on the heels of the decision, businesses will be able to alert users/consumers/customers of potentially unauthorized or fraudulent account activity, without fear of TCPA liability. It is good news for businesses to know that they are able to send text messages and make calls advertising, provided the numbers are not generated or stored in a sequential or random number generator.
Summarized from an article by Stubbs, Alderton & Markiles, LLP.
