The Telephone Consumer Protection Act’s (“TCPA”) regulations require certain disclosures in prerecorded or artificial “voice” messages. Although this regulation was passed before the widespread use of text messages, it was uncertain until recently whether those disclosures applied to text messages, which arguably could be considered to be “artificial”.
The Federal Communications Commission (“FCC”) was of no help, ruling only that text messages were subject to the same protections applicable to live voice calls found in the TCPA.
A recent court case, Reese v. Marketron Broad. Sols., Inc., 2018 U.S. Dist. LEXIS 77319 (E.D. La. May 8, 2018), ruled based on the plain language of the regulation that the disclosures only apply to “voice” messages and not to text messages, and therefore dismissed a TCPA plaintiff’s claim that texts she received did not contain the disclosures.
The judge made this ruling based on the language of the regulation, which applies these disclosures to “voice” calls. Using standard rules of statutory construction, she therefore ruled the disclosures do not need to be in texts (which are not voice communications.)
This is the first time a court has reviewed this question, although an earlier court in a different state simply assumed the TCPA required the disclosures in texts, forcing the defendant in that case to settle paying more than $400,000 in gift certificates to the plaintiffs’ class. See Liotta v. Wolford Boutiques, LLC, 2017 U.S. Dist. LEXIS 47434 (N.D. Ga. Mar. 30, 2017).
The ruling is important as “failure to disclose” is a common allegation in TCPA class action claims based on texts.
We have revised our charts and guidance to remove this disclosure requirement.
If you have questions regarding compliance rules for text messages, please contact me.