If someone asked you to “call” him, what would you do? Shoot him an email? Start a chat on Facebook? Send a text message? Tweet him? Find him on LinkedIn? Chances are, even in this modern era when there are countless ways to communicate, you would still pick up the phone and make a traditional phone call. And certainly that was the case when the TCPA was passed in 1991, before text messages and social media even existed. So it seems like common sense that when the TCPA refers to a “call,” it means a traditional phone call—not a text message. FCC Commissioner Michael O’Rielly expressed this same sentiment in his dissent to the July 10, 2015 FCC Order (the “Order”): “I disagree with the premise that the TCPA applies to text messages. The TCPA was enacted in 1991—before the first text message was ever sent. The Commission should have gone back to Congress for clear guidance on the issue rather than shoehorn a broken regime on a completely different technology.” Order at p. 127.
But O’Rielly’s colleagues have a different worldview. In rejecting a petition from Glide Talk, Ltd., the FCC reiterated that “SMS text messages are subject to the same consumer protections under the TCPA as voice calls.” Order at p. 56. The Commission further found that “equipment used to originate Internet-to-phone text messages to wireless numbers via email or via a wireless carrier’s web portal is an ‘automatic telephone dialing system’ as defined in the TCPA.” Order at p. 58. The Order also used this as an opportunity to emphasize the FCC’s “capacity” finding once again: “Even assuming that the equipment does not actually use a random or sequential number generator, the capacity to do so would make it subject to the TCPA.” Order at p. 59.
Going a step further, the Commission attempts for the first time to define the term “dial” under the TCPA. The FCC adopts a broad definition of the term, finding it reasonable to interpret the term “dial” as “the act of addressing and sending an Internet-to-phone text message to a consumer’s wireless number.” Order at p. 59. Moreover, the Commission found that “Congress intended the word ‘dial’ to mean initiating a communication with consumers through use of their telephone number by an automated means that does not require direct human intervention, recognizing that the specific actions necessary to do so will depend on technical requirements of the carrier’s network.” Order at p. 59. This conclusion, of course, assumes that Congress had remarkable foresight when the statute was passed in 1991, given that text messages did not exist, cell phones were not omnipresent, and the idea of Internet-to-phone messaging was but an inkling.
The FCC also finds that the application of the TCPA to text messages does not violate the First Amendment, but it arrives at that finding without giving serious consideration to the elements for establishing a valid time, place and manner restriction. Because the autodialer provision of the TCPA is content-neutral and has no carve-out for core First Amendment speech, the limitations can be applied to text messages that are religious or political in nature or otherwise address newsworthy matters of public interest. The Order fails to address in any level of detail whether the Commission’s interpretation leaves open ample alternative avenues for this sort of speech.
Finally, the Order undermines an argument often used by defense attorneys in Internet-to-phone text messaging cases by finding that Congress did not intend for the CAN-SPAM Act to apply to Internet-to-phone messages, to the exclusion of the TCPA.
In sum, the Order provides the clearest and most detailed FCC finding to date on the issue of whether the TCPA applies to text messages (including Internet-to-phone text messages). And for those, like Commissioner O’Rielly, who feel that the application of the TCPA to text messages is inappropriate, the Order is deeply disappointing.