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  • 2nd Circuit rules that text messages are not artificial voices

    Courts

    Recently, the U.S. Court of Appeals for the Second Circuit ruled that a text message did not violate the Telephone Consumer Protection Act (TCPA) and affirmed the lower court’s order. The appellate court granted the defendant’s motion to dismiss for failure to state a claim based on its finding that the TCPA did not apply. In December 2016, the defendant sent an automated text message to the plaintiff’s cell phone to market the defendant’s free chips promotion. The plaintiff no longer wished to receive these text messages, and accordingly, she responded to the promotion with a “STOP” message. The defendant then received a response stating that she would “no longer receive any more messages.” A few days later, the plaintiff received another automated text message with an offer.

    The Court found that the TCPA did not apply because (1) the underlying system used to send the plaintiff a text message was not an automatic telephone dialing system (but rather a “stored” list of telephone numbers used), and (2) the message did not utilize “artificial or prerecorded voice,” each of which were required elements of prohibited activity under the TCPA.  

    Courts Appellate TCPA Text Messages Consumer Complaints

  • Florida tightens restrictions on phone and text solicitations

    State Issues

    On May 25, the Florida governor signed HB 761 (the “Act”) to clarify notice requirements relating to telephone and text message solicitations and to outline conditions under which certain civil actions may be brought. Specifically, the amendments provide that “unsolicited” telephone sales calls involving an automated system used to select and dial numbers or one that plays a recorded message cannot be made without the prior express written consent of the called party. Consent may now be obtained by a consumer “checking a box indicating consent or responding affirmatively to receiving text messages, to an advertising campaign, or to an e-mail solicitation.”

    The Act also clarifies that before the commencement of a civil action for damages for text message solicitations, the called party must reply “STOP” to the number that sent the message. The called party may bring an action only if consent is not given and the telephone solicitor continues to send text messages 15 days after being told to cease. The new requirements apply to any suit filed on or after the Act’s immediate effective date, as well as to any putative class action not certified on or before the effective date of the Act. The Act became effective immediately.

    State Issues Privacy, Cyber Risk & Data Security Florida Consumer Protection State Legislation Text Messages

  • FCC regulations target scam robotexts

    Agency Rule-Making & Guidance

    On March 16, the FCC adopted its first regulations specifically targeting scam text messages sent to consumers. Recognizing that robotexts are generally covered under the TCPA’s limits against unwanted calls to mobile phones, the FCC stated that the new regulations will require mobile service providers to block certain robotexts that appear to be coming from phone numbers that are unlikely to transmit text messages, including invalid, unallocated, or unused numbers, as well as “numbers that the subscriber to the number has self-identified as never sending text messages, and numbers that government agencies and other well-known entities identify as not used for texting.” Mobile service providers will also be required “to establish a point of contact for text senders, or have providers require their aggregator partners or blocking contractors to establish such a point of contact, which senders can use to inquire about blocked texts.”

    The FCC’s report and order also include a further notice of proposed rulemaking, which seeks to implement additional protections to further prevent illegal text messages. The proposal would “require terminating providers to block texts from a sender after they are on notice from the Commission that the sender is sending illegal texts, to extend the National Do-Not-Call Registry’s protections to text messages, and to ban the practice of marketers purporting to have written consent for numerous parties to contact a consumer, based on one consent.”

    Comments are due 30 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Federal Issues FCC Text Messages TCPA Consumer Protection Do Not Call Registry Robotext

  • FCC proposes rulemaking to combat unlawful text messages

    Agency Rule-Making & Guidance

    On September 27, the FCC announced a notice of proposed rulemaking (NPRM) to target and eliminate unlawful text messages. According to the FCC, the number of consumer complaints received related to unwanted text messages has increased by 146 percent between 2019 and 2020, and continues to grow in 2022. The Commission warns that these text messages present harms beyond that of unwanted phone calls, as text messages can include phishing and malware links. More than $86 million was stolen in 2020 through spam texting fraud schemes, the FCC reports. The NPRM seeks feedback on several topics, including whether providers should follow the STIR/SHAKEN authentication protocols for text messages as they do for phone calls, whether providers should block texts from invalid phone numbers, and how it can ensure that emergency text messages or other appropriate texts are not erroneously blocked. The NPRM also proposes requiring providers to block texts that appear to originate from phone numbers that are invalid, unallocated, or unused as well as numbers on the “Do-Not-Originate” list.

    The Commission is also seeking input on the extent to which spoofing is a problem in texting, and if caller ID authentication standards should be applied to texting. Spoofing is when a sender deliberately disguises their number to trick a recipient into thinking the message is trustworthy. A working group of the Internet Engineering Task Force is currently considering a draft standard that would apply parts of the STIR/SHAKEN framework to text messages, the FCC stated, adding that it is asking stakeholders for suggestions on an ideal timeline and feedback on whether the current framework’s governance system would be able to accommodate authentication for text messages or if the framework would require more comprehensive technology network upgrades.

    Comments on the NPRM are due 30 days after publication in the Federal Register.

    Agency Rule-Making & Guidance Privacy, Cyber Risk & Data Security FCC Text Messages

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