Taking Another Look At Texts Through A Different Lens

One of the most significant challenges with the TCPA is maintaining pace with the different ways it is interpreted. For instance, let’s look at some of the language used in TCPA. It opens with a series of definitions for key terms such as the following: 

  • Automatic telephone dialing system (ATDS)
  • Established business relationship
  • Telephone facsimile machine
  • Telephone solicitation
  • Unsolicited advertisements

Then it segues into automated telephone equipment and how it is prohibited. 

It states, “It shall be unlawful…to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice…”  On its surface, it appears straightforward, but it has been challenged multiple times in the last two years. 

Are Texts Considered Calls?

As strange as that question may appear, it has been at the heart of several of the cases we have previously mentioned. For instance, a plaintiff named Lucine Trim filed a lawsuit against Reward Zone USA LLC. Regardless of what you may think or have heard about Reward Zone, focus on what they were accused of doing. They sent promotional offers to Lucine Trim’s cell phone with text messages. SMS (texts) are an effective marketing tool because people are more likely to open and read them than answer and listen to marketing telephone calls.

The TCPA states that marketing calls cannot be made without consent, nor can they be used with an ATDS or an artificial or prerecorded device. Furthermore, the TCPA defines what an ATDS is. (Ironically, even that definition has been challenged by Facebook’s attorneys, and you can read about it here.) Although the District Court held that the equipment Reward Zone used didn’t meet the definition of an ATDS, something else should be noted. They also stated that because Reward Zone used texts, there were no artificial or prerecorded voice messages. In other words, texts aren’t included in this specific area of the TCPA. 

Risher v. Adecco Inc.

In this case, the plaintiff Clarence Risher claimed that the defendants (Adecco, Inc. & Mya Systems) violated the TCPA by sending text messages through an ATDS. The difference is the addition of a chatbot, which creates an automated conversation with a computer through text instead of an artificial voice. The Northern District of California disagreed with the plaintiff’s argument that a chatbot or a text could be viewed as a voice, but they also stated that the argument wasn’t entirely frivolous. 

For the time being, text messages do not violate the provision that prevents telemarketers from making unsolicited calls that have an artificial or prerecorded voice. But that doesn’t mean there won’t be more challenges to this part of the TCPA in the future.

Serving the Telemarketing Industry for Over 25 Years

We stay abreast of these current laws, rulings, and regulations because it puts us in the best position to protect you. After 25 years, we are proud to assist telemarketing companies with compliance regarding the state and federal do-not-call registries, TCPA, and the federal telemarketing sales rule (TSR). For more information about how we can assist you with compliance with regulatory defense, contact us to schedule your free initial consultation.