The Federal Communications Commission (“FCC”) has issued a Declaratory Ruling reaffirming that click-to-text systems requiring human intervention for each individual text message are not automatic telephone dialing systems (“ATDS”). The petitioner, P2P Alliance, argued that its peer-to-peer (“P2P”) texting platform requires a human to “to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time.” The P2P platform cannot store, produce, or dial random or sequential numbers. Rather, the sender dials a number and may choose to send either a pre-scripted or unique text message to begin a two-way text conversation.
Consumer groups opposed the petition by arguing that P2P platforms, like P2P Alliance’s, can send vast amounts of text messages in a short time with minimal and meaningless human participation. However, the FCC reiterated that the relevant question as to whether a platform is an ATDS, is if the platform can store, produce, and dial random or sequential numbers without human intervention, not if many calls or texts can be made in a short time. As stated by the FCC, “The TCPA does not and was not intended to stop every type of call. Rather, it was limited only to calls made using an autodialer or an artificial or prerecorded voice.”
Through this ruling, the FCC has confirmed that human intervention remains key to ATDS analysis and “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls or texts made using it are not subject to the TCPA’s restrictions on calls and texts to wireless phones.” The FCC’s interpretation comports with the trend of past cases analyzing click-to-dial systems and will bring much needed comfort to businesses using these types of telephony systems.
A Partner at M&S, Josh advises clients on a range of proactive and responsive matters, helping them achieve their business goals while complying with federal and state privacy and other consumer protection laws.