The Telephone Consumer Protection Act (“TCPA”) prohibits using an automatic telephone dialing system (“ATDS”) to contact cell phones unless the recipient has provided “consent” to receive the call/text. On June 25, 2020 the Federal Communications Commission (“FCC”) issued a Declaratory Ruling stating that if a texting platform actually “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time” and lacks the capacity to transmit more than
one message without a human manually dialing each recipient’s number, then such platform would not be an “autodialer” that is subject to the Telephone Consumer Protection Act (TCPA).
In 2003, the Federal Trade Commission and FCC jointly issued rules that together created the National Do Not Call Registry (“DNC Registry”). Callers are generally prohibited from calling or texting consumer numbers listed on the DNC Registry for telemarketing purposes. In order to call/text a consumer on the DNC Registry, the telemarketer must have either (a) PEWC from the consumer or (b) an established business relationship (“EBR”) with the consumer. The term EBR includes business relationships where the consumer has entered into a transaction with the seller within the previous 18 months (“Transactional EBR”) or inquired about the seller's goods/services within the previous 3 months (“Inquiry EBR”). Calls to consumers that previously made a company-specific DNC request are prohibited even if that company has an EBR with the consumer or the consumer provided written consent for such calls prior to making their DNC request.
When using a texting platform, one should always keep in mind the TCPA and federal DNC considerations applicable to that platform. The following chart summarizes these considerations based on whether the platform is an ATDS or non-ATDS and whether it is being used for telemarketing or informational purposes: