/>iWhen Facebook was decided I predicted that 90 percent of courts would determine that the TCPA did not apply to callers attempting to reach non-randomly produced phone numbers. I’ve also said—repeatedly—that the text channel is now the safest communication channel. (Indeed I blew people’s minds at contact.io when I said from the stage that conversational and triggered texts can now safely be used to communicate with customers without consent…outside of Florida and DNC issues, of course)
Out of the gate there was some tension, with more courts than expected pushing back and adopting—at least at the pleadings stage—the Plaintiff bar’s FN7 arguments.
But now, at moderate last, the chips are starting to fall into place.
Three huge cases out in the last week really drive home the importance of Facebook –at least as applied to text message communication.
First, in Laguardia, Case No. 2:20-cv-2311, 2021 U.S. Dist. LEXIS 170704 (S.D. Oh. September 9, 2021) the court granted summary judgment to Defendant holding squarely that only the use of a R&SNG to generate phone numbers triggers the TCPA’s ATDS definition under Facebook. The defendant in that case was using a number generator to create IDs to track unique texts for campaign purposes. Despite the fact that the system was plainly using a number generator in connection with texts, the Court had no trouble distinguishing between that sort of number generation and the generation of telephone numbers to be dialed. As the system was not generating telephone numbers, the text messages being sent to lists of customers were simply not sent using an ATDS.
Next, in Brickman, Case No. 16-cv-00751-WHO, 2021 U.S. Dist. LEXIS 175700 (N.D. Cal. September 15, 2021) the court denied a motion for leave to file a second amended complaint. At issue in that case were birthday text messages being sent automatically by a popular social media site. (I wonder which one.) The Court determined that since the texts were being sent based upon an occurrence—i.e. a birthday—they were not being sent using a R&SNG. The Court had no trouble reaching this conclusion despite the Plaintiff’s arguments that the order in which texts were being sent was determined via a random or sequential process. As the numbers receiving the texts were not randomly or sequentially generated, even if the text sequence were determined using an R&SNG is not enough—only the use of an R&SNG to generate phone numbers is sufficient to trigger TCPA.
Lastly, in Jovanovic v. Srp Invs. Llc, No. CV-21-00393-PHX-JJT, 2021 U.S. Dist. LEXIS 175631 (D. Az. September 14, 2021) the court granted a motion to dismiss an ATDS claim holding that the receipt of a personalized text message from a long code is inconsistent with ATDS usage. With 10DLC registration around the corner the use of long code will continue to be a popular communication channel by legitimate businesses—one that a court in Arizona just blessed as potentially TCPA-proof.
I’ll note that these are just three district court-level opinions—and not binding precedent—but they basically prove I was right all along. Text communication—particularly triggered texts of the sort used in Brickman—is the safest post-Facebook TCPA communication channel (along with human selection dialers.) Here’s that stoplight again:
While blast messages do carry some risk, as the LaGuardia case demonstrates the Courts are less concerned with dialing sequence in the text context than they seem to be in the voice channel context. And as texters migrate toward long code messaging, decisions like Jovanovic provide even further cover.
Look, none of this is final. And please don’t read this blog post to mean that the coast is now entirely clear. But if you’re not moving toward AI or conversational text message—Drips?—then you’re missing an opportunity here.
