It started in 1990, when, powered by automatic dialing systems, U.S. telemarketing sales exceeded China’s gross domestic product (GDP) at $435 billion. And telemarketers programmed their autodialers indiscriminately, using the equipment to dial 10-digit phone numbers randomly and sequentially. Calls were even inadvertently placed to emergency services, tying up lines for extended periods because the devices seized telephone lines until telemarketers had completed their message.
That led to the enactment of the TCPA in 1991, which made calls placed with autodialers unlawful unless they were made with the prior express consent of the called party, for emergency purposes, or to collect a debt owed to or guaranteed by the United States. Over the years, text messages became viewed like phone calls that rules promulgated by the TCPA could regulate.
The FCC tightened the screws on text promotions even more in 2015, ruling that a marketer had to obtain “written” authorization from the consumer before texting an advertisement or marketing message. This created a tantalizing segment for the legal community. But that all changed on April 1, when the U.S. Supreme largely adopted Facebook’s arguments by ruling unanimously to reverse and remand the judgment of the Ninth Circuit.
“As defined by the TCPA, an ‘automatic telephone dialing system’ is a piece of equipment with the capacity to both ‘store or produce telephone numbers to be called, using a random or sequential number generator,’ and to dial those numbers,” wrote Justice Sonia Sotomayor in the high court’s opinion. “The question before the Court is whether that definition encompasses equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘use a random or sequential number generator.’ It does not.”