In recent years many industries, including, by way of example only, the solar industry, have rapidly adopted text messaging to, among other things, keep in touch with their customers, to alert customers to the availability of new goods and services, and to entice customers to upgrade their systems with a promotional offer or rebate-related information. Pre-recorded calls and text messages are governed by the federal Telephone Consumer Protection Act (TCPA) and the Federal Communication Commission’s (FCC) implementing rules. In recent years, thousands of nationwide consumer class actions have been filed alleging violations of the TCPA – including bare technical violations – and seeking up to $1,500 for each alleged unlawful pre-recorded call and/or text message.
Very recently, the U.S. Court of Appeals for the District of Columbia issued a long-awaited decision in ACA International, et al., v. FCC, invalidating certain aspects of the FCC’s 2015 Declaration Ruling and Order interpreting the TCPA and its new rules effective on October 16, 2013, and confirming others. The Court of Appeals effectively reined in the FCC with respect to what is an “automated telephone dialing system” and how texts to reassigned telephone numbers should be treated. This area of the law is expected to continue to develop under the new administration but remains fraught with risk for the unwary.