United States: It's Time For The Main Event: How The Reinforced TCPA May Play A Pivotal Role In The 2020 Elections

With the Supreme Court recently upholding the constitutionality of the Telephone Consumer Protection Act ("TCPA"), political campaigns, PACs, and grassroots GOTV organizations now know the tools by which they will be allowed to go to battle as it relates to the use of text messaging to get out the vote, raise awareness and raise funds.

Just as it was for Barack Obama's historic 2008 election win, the ability for campaigns to find creative ways to engage new and previously-apathetic voters via text message while also complying with the TCPA's texting restrictions will be of great import. But in the 2020 election, the importance can't be understated – with the pandemic limiting person-to-person contact, our cell phones providing an increasing percentage of consumer's daily content consumption, and with so many organizations now looking to galvanize new voters with shifting mindsets for social justice and change.

But, as has been the unintended consequence of this 31-year-old bill, it is already leading to significant legal exposure for failing to comply with the deceptively penal law – both from the Plaintiffs bar and from the FCC. From the 2016 and 2019 separate class actions filed against the Trump campaign for sending texts to people who never consented, to the recent class action filed this past June against a Georgia Congressional candidate for sending confirmation texts following opt-outs, to the $2.8 million FCC fine of a robocalling platform for sending a total of 180 unwanted texts ($16,000 penalty per text, as opposed to the $1,500 per text maximum allowable penalty in civil class actions).

This article will discuss campaign-related TCPA class action (and FCC) activity past and present, a trend which is sure to pick up in the coming months, particularly with the heightened awareness brought on by the recent Supreme Court decision. This article will then discuss some of the more common ways of reducing the risk of TCPA exposure from a legal perspective, and utilizing newer applications and technologies that facilitate manual / peer-to-peer texting on a large scale – a specific practice that was recently approved by the FCC in a declaratory ruling in late June.

>TCPA and Campaigns: Obama '08 and SCOTUS 2020 Clearing the Path

The TCPA was enacted in 1991 to combat a rising tide of unwanted telemarketing calls and faxes, and has since been expanded to cover calls to cell phones and text messaging. The original intent was to restrict automated or prerecorded (robo)calls unless the receiving party consents to receive the call, though critics have noted that technology has outpaced the federal statutes regulating telemarketing, leaving marketers uncertain as to what is and is not permitted under what was already a complex and difficult law to comply with.

But it was another challenge to the law's constitutionality that recently was decided by the Supreme Court, who on July 6 struck down a specific exception for texts/calls related to the collection of federally-backed debts, but declined to strike down the bill in its entirety, instead severing the unconstitutional provision, and reiterating the heightened importance in 2020 of the TCPA and the need to protect consumer's cell phones from these unwanted texts. (see related article on the recent Supreme Court's decision)[1].

While the political organizations backing the challenge fell short of its ultimate goal of invalidating the entire bill, the ruling does at least provide some clarity on what it can and cannot do. But it also provides clarity for the Plaintiffs bar: with required statutory damages of $500-$1,500 per call or text, and essentially strict liability even when the texts/calls are made by a third party marketing company, class action judgments and settlements in the seven, eight, and nine figures are common among many industries (see related article for TCPA trends in the Cannabis industry)[2].

While the TCPA is primarily concerned with commercial solicitations, the law (and accompanying FCC regulations) do treat campaigns differently than other company's involved in the sale of goods and services – for better and for worse. On the one hand, the First Amendment political speech is further protected with lessened restrictions on calls and texts, including political calls being exempt from the Federal Do Not Call List, autodial calls to landlines being permitted, and importantly, manually-dialed phone calls by volunteers being permitted even without the prior consent of the called party (among other differences). On the other hand, the law and the FCC recognize the dangers posed by abuses of TCPA compliance by political organizations, and has therefore provided the FCC with the authority to increase the available fine per violation from a maximum of $1,500 to a maximum of $16,000.

Even before anyone knew what COVID-19 was, texting was already proven to be an effective tool, with many studies showing one text the day before an election increased voter turnout by 0.5%, and with the cost per vote for a reminder text averaging about $15, as opposed to $25 for door-knocking and $20-$26 for live phone calls. Now, with the elimination of door knocking and the reduction in manual workforce call centers caused by COVID-19, texting stands to fill that a large part of that void.

The importance of texting first became truly evident in the 2008 election, when Barack Obama used text messaging to increase voter turnout in record numbers. But the way in which the campaign created their call list without violating the TCPA was truly the unsung hero in that portion of the strategy. While it of course requested cell phone numbers and obtained consents at traditional voter registration drives, but it got most of its mobile numbers through an interesting engagement strategy: if a voter texted the campaign, Obama would text back to announce his pick for Vice President.

This turned out to be a quite simple yet effective way to get around the most common TCPA obstacle: the exploit opt-in. However, as stated above, the TCPA has little forgiveness – and large consequences.

>Campaign-Related TCPA Class Action and FCC Activity

Much like the Olympics, there is an inevitable wave of campaign-related TCPA class action activity every four years (and smaller waves every two years, somewhat akin to the Winter Olympics if we're to extend the analogy). In March of 2016, the FCC the Federal Communications Commission (FCC) issued an Advisory to remind political campaigns of the "clear limits" on autodialed and prerecorded voice calls and texts under the TCPA. Nevertheless, the class action activity was fast and furious by April.

Case in point, the Trump campaign had a pair of TCPA class actions filed two days apart in April 2016, one with a lead Plaintiff who claims to never have provided his phone number, and one with a lead Plaintiff who provided his phone number to Event Brite in order to obtain a ticket to a Trump rally, but alleges that this action did not constitute consent to receive an unsolicited text message.

Though the campaign alleged that Plaintiff could not prove any use of auto-dialing, and defended the law suits into the beginning of the Presidency. After Trump won the election, the case created the unusual situation where the government had to consider defending a law against its own president, but it was reportedly settled in February 2017 for $200,000.[3]

This go-around, the Trump campaign was hit by another TCPA class action earlier in the process, just recently losing a motion to dismiss on June 8, 2020[4]. In this pending case, the Chief Judge's ruling covered a number of issues of wide applicability and interest, holding that that a single text message is enough to establish Article III standing to sue. While the court acknowledged the Eleventh Circuit's contrary opinion in Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019), it agreed with the "logic of the majority of circuits...that a text message, while a different format than a phone call, voicemail, or fax, presents at least an equivalent level of disturbance and injury, and thus constitutes a cognizable injury under the TCPA." The court also rejected the Campaign's challenge to Plaintiffs' pleading of the Campaign's use of an automatic dialing system, deciding the issue now rather than at the summary judgment phase (as is done in other Circuits).

While these circuit splits were highlighted and addressed by the court in the recent Trump case, another recent class action suit filed against a longtime Georgia state senator highlights yet another important circuit split that could create liability for an unknowing campaign.[5] In According to the Complaint filed on June 22 against a long-time Georgia state senator an automatic telephone dialing system in was used in early May to send automated text messages to a large number of residents. However, the interesting wrinkle to this law suit is the additional allegation related to the common practice of sending a confirmation text following an "opt out" or "unsubscribe" by the consumer. Specifically, Plaintiffs allege that they texted “Stop” on May 9 in an effort to opt out of receiving the texts, and the automated system confirmed his number had been unsubscribed, thus constituting an additional message sent to him after he had “revoked” authority for the system to send him messages. Such an allegation can often come as a surprise to many companies and campaigns, particularly seeing as how some Circuits have held this "opt out follow-up" to be another unsolicited message, and some have found it to be acceptable. As such, the practice may be permitted when reaching out to certain individuals in certain states, but not as to others – leading to a "better safe than sorry" approach as the advisable approach when deciding whether or not to include these opt-out follow up texts in any texting marketing plan.

Reducing the potential for the Plaintiffs bar to tack on additional unwanted messages to the class count at a cost of $500-$1,500 per violation is no doubt a prime concern, but as discussed above, the Plaintiffs bar is not the only TCPA enforcement threat to political campaigns. The long arm of the FCC has shown its teeth as well, with one notable example being made in 2017 of a robocalling platform that assisted campaigns with a $2.88 million fine.

But aside from the message sent by the fine amount, the matter of Dialing Services LLC provided some guiding principles for any campaign looking to learn from others past mistakes. The matter actually began in 2012, when Dialing Services was responsible for 4.7 million calls in a three-month period for multiple clients. The FCC's Enforcement Bureau put Dialing Services on notice of the violations by issuing a warning in 2013, but when the FCC later inspected Dialing Services years later, it found a total of 180 unsolicited calls to cell phones.

So why the hammer thrown down with the maximum $16,000 fine per violation? For starters, the Order reflects the FCC's displeasure with Dialing Services for assisting clients in blocking or altering caller ID information, stating that the "Caller ID spoofing and blocking functionalities are designed to deceive consumers about the originating point of calls or to hide the originating point altogether." Additionally, the FCC rejected Dialing Services' argument that consumers may have provided prior express consent "orally or in ways not easily documented."

Finally, so as to make it clear that more than one party can be liable under the TCPA for such actions, though the calls were made for the benefit of Dialing Services' customers, Dialing Services was found to be liable for the TCPA violations because "the record also shows that Dialing Services was directly involved in creation of the content of illegal robocall campaigns and actively assisted clients with the creation and structure of messages. The Commission reasoned that Dialing Services was "so involved" in the calls, it either had the responsibility to obtain consent from the called parties or should have required the platform's customers to provide proof of [the] respective consents" from the consumers receiving the calls.

>What To Do (and recent FCC Guidance)

With the second surge of the pandemic gaining momentum as we speak, and the possibility of yet another surge (or even another pandemic) between now and November, its safe to say texting will be utilized by most every political campaigns, PACs, social movement, and grassroots Get Out the Vote organization we will come into contact with. So, what can these organizations do to avoid crippling TCPA exposure and liability?

First, in a general sense, a state-by-state analysis of such laws is required prior to launching any political campaign or texting campaign, as a number of states have more restrictive laws on telemarketing, and some even attempt to regulate political speech or do not extend the exemptions that exist under the TCPA to political campaign calls (such as placing political calls on state DNC restrictions).

Campaigns using third party texting and marketing services must not only diligently vet the third party marketing companies to ensure proper TCPA (and campaign-specific) compliance protocols, but should also take additional steps as second layers of protection – such routinely cross-check the Federal Do Not Call List, which essentially acts as a published dating service between Plaintiffs attorneys and prospective Plaintiffs. And once voters opt out of receiving messages, campaigns should not only ensure those opts outs are subsequently complied with, but they would also be wise to eliminate any follow-up confirmation texts (or else risk being on the wrong side of the circuit split).

As always, the terms and conditions by which consent is initially given are of increasing importance, where a clear, conspicuous and enforceable arbitration provision and/or class action waiver will go a long way in limiting the potential TCPA class action exposure. Closely related then is the choice of law provision in any terms and conditions, since many states (such as California) have their own unique treatment of class action waivers and arbitration provisions, often resulting in challenges on various grounds. And as the FCC case discussed above shows, the consents better be documented, stored and retrievable, since the campaign / texting platform has the burden of proof to show consent was obtained.

Specific to the 2020 election, it remains to be seen who will find the most creative ways to effectively use text messaging without running afoul of the TCPA. Look for many campaigns to start employing new applications that facilitate manual, peer-to-peer texting on a large scale. These apps ensure that staff or volunteer texters use manual intervention to send texts to voters, which addresses the automatic dialing system restriction. Whereas previously campaigns could only text voters who had given their explicit consent, strategies such as these now allow campaigns to text cell numbers pulled from voter files.

Such a practice (or at least one specific application of this practice) was recently discussed and approved by the FCC in a Declaratory Ruling issued June 25, 2020. The petitioner argued that its 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, and that it 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. Though Consumer groups argued that P2P platforms such as this can send vast amounts of text messages in short time with minimal and meaningless human participation, 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 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." However, campaigns and organizations must be careful not to get too cute or too creative, as the FCC has already shown its strong distaste for Caller ID spoofing and blocking functionalities designed to deceive voters about the originating point of calls. Additionally, in what may some NFL fans may consider the "Vontaze Burfict Rule of Thumb", repeat offenders seem to face a significant threat of being hit with the maximum fines, even if the subsequent offenses are isolated or limited.

For continued updates on this developing and important legal issue in the 2020 election cycle....check your phone.

Footnotes

1 See https://www.consumerclassdefense.com/2020/07/a-fractured-supreme-court-strikes-down-and-severs-the-tcpas-government-debt-exemption-leaving-the-rest-of-the-statute-intact/

2 See https://www.consumerclassdefense.com/2020/06/mass-texts-how-the-cannabis-industry-must-deal-with-the-surge-of-tcpa-class-actions-during-covid-19/

3 See https://www.politico.com/story/2017/02/donald-trump-texting-lawsuit-234768

4 See Pederson v. Donald J. Trump for President, Inc., case number CV 19-2735, 2020 WL 3047779 (D. Minn. June 8, 2020).

5 See Bowman v. Unterman, case number 1:20-cv-02612, in the U.S. District Court for the Northern District of Georgia.

Originally published by Seyfarth Shaw, July 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.