Beware of Fake P2P political firms blatantly
ignoring the FCC on P2P Texting.
The FCC vs Political Robotexts
On June 25, 2020, the FCC ruled that real, human-driven political P2P texting does NOT violate the TCPA as autodialing. Yet, some reckless companies are willfully ignoring the FCC, opting for illegal bulk robotexting under the guise of peer-to-peer communication.
The FCC Declaratory Order stated that:
“[W]e make clear that if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer and calls or texts made using it are not subject to the TCPA’s restrictions on calls and texts to wireless phones.”
FCC Ruling on Real P2P:
“Political text messages can be sent if the message’s sender does not use auto dialing technology to send such texts and instead manually dials them.” - FCC
FCC Ruling on Fake P2P:
“Text messages generated through auto dialing are also considered a type of call and fall under all robocall rules” - FCC
Don’t Fall for the Fake P2P
“Legal Narrative”
Fake P2P firms are taking costly shortcuts claiming they have the “law” on their side. This is untrue. The fake P2P argument hinges on an obscure footnote “7” from an unrelated court case.
Experts agree to proceed with extreme caution.
Courts not swayed by attempts to expand Facebook Footnote 7
Troutman Pepper
https://www.jdsupra.com/legalnews/human-intervention-still-answers-the-2062213/
In the Wake of Facebook v. Duguid, Courts Continue to Split Over Definition of Automated Telephone Dialing System
Dentons
https://www.dentons.com/en/insights/articles/2022/december/2/in-the-wake-of-facebook-v-duguid
5 Reason NOT to Trust
the Fake P2P Narrative
1
Unproven in Court:
The claims backing fake P2P narratives have seen mixed unreliable legal results. Trusting them is a multi-million dollar gamble.
2
Legal Jeopardy:
Engaging with these firms can expose you to lawsuits and hefty FCC fines ($16,000 per text), resting on shaky, untested defenses.
3
Inevitable Legal Battles:
It’s not a matter of “if”, but “when” you’ll face litigation for robo-texting, potentially draining millions in defense efforts to carve out a new legal precedent.
4
Ignoring FCC Directives:
The FCC’s clear ruling on P2P is blatantly disregarded by these firms, putting you at direct risk.
5
Texts are Still Calls Under TCPA:
In the Facebook decision, the Supreme Court didn’t address the TCPA’s prohibition of text messages, leaving Robotexts subject to TCPA.
Text Blasting is still not safe…
Eric Troutman on Facebook v. Duguid:
https://go.dnc.com/text-marketing-consent-masterclass-series-part-2
12:24 and 49:20
Anytime you are talking about blast texting of any type, you will be in the Yellow.
Eric Troutman on Facebook v. Duguid:
https://go.dnc.com/text-marketing-consent-masterclass-series-part-2
12:24 and 49:20
The use of 1:1 or P2P texting is still important.
Eric Troutman on Facebook v. Duguid:
https://go.dnc.com/text-marketing-consent-masterclass-series-part-2
12:24 and 49:20
Real P2P Successfully Argued
in the Eleventh Circuit and District Courts
PASCAL v. CONCENTRA, INC.
The court found the P2P system also had all of the hallmarks of human intervention.
Courts continue to apply a common-sense reading of Facebook and are not swayed by attempts to expand Footnote 7 beyond its narrowly circumscribed purpose… Finally, the stand-by of human intervention continues to pay dividends. Facebook may have provided clarity, but traditional evidence of consistent and repeated human intervention still holds sway with federal courts.
Defendant Won Summary Judgment – www.jdsupra.com
MATTHEW BOWMAN – Plaintiff v. UNTERMAN FOR CONGRESS, INC.
The defendant, a congressional candidate successfully argued.
The fact that a human sends each text message is critically important. In Glasser, the Eleventh Circuit found that a system is not an “automatic” dialing system for purposes of the TCPA when “the system requires a human’s involvement before it places any calls.” Further, the Court found a key factor in the system not being an automatic system for purposes of the TCPA was that “[h]uman intervention [was] necessary.” Just like the system that was not an automatic dialing system in Glasser, the text messages sent to Plaintiff were sent only with human involvement.
The case was dismissed.
BERGER – Plaintiff v. REPUBLICAN NAT’l COMMITTEE, 4:21-cv-190 (E.D. Tex.)
The defendant successfully argued.
Court grants summary judgment for defendant, finding that a P2P texting platform does not constitute an ATDS.
The case was dismissed.
Sources & Recent Court Cases
FCC Declaratory Ruling
https://docs.fcc.gov/public/attachments/DA-20-670A1.pdf
FCC – Political Texting
https://www.fcc.gov/consumers/guides/stop-unwanted-robocalls-and-texts#:~:text=If%20you%20think%20you’ve,(or%20%22SPAM%22)
Human Intervention Still Answers the Call
https://www.jdsupra.com/legalnews/human-intervention-still-answers-the-2062213/
Human intervention successfully argued in 11th circuit
https://www.dnc.com/news/georgia-congressional-candidate-faces-tcpa-lawsuit-over-campaign-texts
Rules for Political Campaign Calls and Texts
https://www.fcc.gov/rules-political-campaign-calls-and-texts
FCC Issues Declaratory TCPA Ruling: Certain P2P Text Messaging Platforms Are Not Autodialers
https://content.next.westlaw.com/practical-law/document/Ieacac0b3bbb911eabea4f0dc9fb69570/FCC-Issues-Declaratory-TCPA-Ruling-Certain-P2P-Text-Messaging-Platforms-Are-Not-Autodialers
Facebook v. Duguid, Courts Continue to Split Over Definition of ATDS
https://www.dentons.com/en/insights/articles/2022/december/2/in-the-wake-of-facebook-v-duguid
Political Robotext Suits Skyrocket
https://www.wiley.law/newsletter-TCPA-Suit-Against-Political-Campaigns-Rise-Trump-Campaign-Facing-Separate-Class-Action-Suits
Lawsuits Loom Over Political Robotexts
https://www.youtube.com/watch?v=sFhA_Bw5PA8
GOP Sued Amid Rising TCPA Actions
https://tcpaworld.com/2022/08/25/political-tcpa-cases-return-republicans-sued-for-robocalls-again-as-tcpa-class-actions-go-political-once-more/
$5M FCC Penalty for TCPA Breach by Political Robotexts
https://www.jdsupra.com/legalnews/fcc-levies-5-million-fine-for-political-5756529/
Trump Campaign’s Robotext Battle: Court Refuses Dismissal
https://topclassactions.com/lawsuit-settlements/tcpa/judge-refuses-to-dismiss-class-action-against-trump-campaign-over-political-texts/
Recurring Theme: Legal Action Against Political Robotexts in Mayoral Race
https://www.dnc.com/news/court-rules-against-texting-platform-mayoral-campaign-tcpa-class-action
Legal Storm: Trump’s PAC Faces New TCPA Robotext Suit
https://www.natlawreview.com/article/political-tcpa-suits-continue-to-pour-latest-tcpa-suit-targets-trump-make-america
Vivek Ramaswamy’s Campaign Rocked by MAJOR Robotext Lawsuit
https://www.newsweek.com/vivek-ramaswamy-robocalls-lawsuit-1863484
Vivek 2024 Slammed with Spam Text Class Action
https://www.classaction.org/news/vivek-2024-election-campaign-hit-with-class-action-over-alleged-spam-texts
NRCC Face Class Action Lawsuit over Robotexts
https://topclassactions.com/lawsuit-settlements/privacy/national-republican-congressional-committee-class-action-alleges-organization-sent-unsolicited-donation-texts/
RNC facing class action over Flordia Robotexts
https://www.law.com/dailybusinessreview/2022/11/07/rnc-facing-florida-civil-rights-class-action-over-spam-texts/
The Onslaught – Politicians Sued Over RoboTexts
https://www.axios.com/2022/08/31/political-campaigns-robotext-lawsuits-2022-midterms
Plaintiff Awarded 60k in DNC Robotexts Lawsuit
https://www.kcur.org/news/2022-01-17/kansas-woman-sues-democratic-national-committee-over-robotexts-and-wins-60-000
NRCC Faces Class Action for Donation Robotexts
https://topclassactions.com/lawsuit-settlements/privacy/national-republican-congressional-committee-class-action-alleges-organization-sent-unsolicited-donation-texts/
GOP Battles Fresh Wave of Robotext TCPA Suits
https://tcpaworld.com/2022/08/25/political-tcpa-cases-return-republicans-sued-for-robocalls-again-as-tcpa-class-actions-go-political-once-more/
TCPA Entangles in Political Robotext Battles
https://www.natlawreview.com/article/playing-politics-when-tcpa-becomes-mixed-politics-all-betos-are
Political Robotexts Cost Pelosi Campaign $7.5K in Settlement
https://www.businessinsider.com/nancy-pelosi-campaign-pays-man-fundraising-text-lawsuit-2023-4
Maryland PAC Sued BIG for Political Robotext
https://www.axios.com/2022/08/31/political-campaigns-robotext-lawsuits-2022-midterms
Class Action Lawsuit over Illegal Robotexts from Arizona PAC
https://www.classaction.org/news/saving-arizona-pac-sent-illegal-spam-texts-to-promote-political-agenda-class-action-claims
GOP Senatorial Committee Sued Over Political Robocalls
https://tcpaworld.com/2021/03/03/playing-politics-national-republican-senatorial-committee-sued-for-unwanted-robocalls/
Maryland PAC Fined for Political Robotexts
https://wtop.com/maryland/2023/10/political-action-committee-fined-in-maryland-for-text-message-without-identifying-line/
Government’s Unsolicited Political Robotexts Under Fire
https://www.golocalprov.com/news/RI-Government-Using-Vendor-to-Send-Tens-of-Thousands-of-Unsolicited-Texts
California Voter Sues Over Biden Political Robotexts
https://www.wfmj.com/story/47197208/california-man-sues-dems-tim-ryan-biden-campaigns-over-robo-text-messages
Another Class Action Lawsuit Over Political Robotexts
https://www.classaction.org/news/saving-arizona-pac-sent-illegal-spam-texts-to-promote-political-agenda-class-action-claims
Political campaigns flooded with lawsuits over text messages
https://www.cnbc.com/video/2022/09/02/political-campaigns-face-lawsuits-over-text-messages.html
Major Ruling Against Political Robotexts in Mayoral Campaign
https://www.dnc.com/news/court-rules-against-texting-platform-mayoral-campaign-tcpa-class-action
GOP Entangled in Robotext Class Action Drama
https://www.classaction.org/news/republican-national-committee-hit-with-class-action-over-alleged-spam-texts
11 Circuit Holds that One Robotext is Sufficient Injury
https://www.dentons.com/en/insights/alerts/2023/july/31/eleventh-circuit-holds-that-one-unsolicited-text-message-is-sufficient-injury
NRSC’s TCPA Robotext Challenge Fails
https://tcpaworld.com/2021/04/05/tcpa-quick-hitter-national-republican-senatorial-committees-constitutional-challenge-to-tcpa-rejected-highlights-why-congress-unlikely-to-act-on-broadening-tcpa-in-response-to-facebo/
Election Robocalls Resulted in $5M in Fines
https://www.nbcnews.com/politics/elections/robocalls-voters-2020-election-result-5-million-fine-rcna88391
Major FCC’s Robotext Crackdown
https://www.latimes.com/business/story/2023-03-16/fcc-cracks-down-on-robotexts-what-steps-you-can-take
FCC’s New Rules Put Politicians on Notice for Robotext Spam
https://www.commondreams.org/opinion/political-texting-spam-fcc
Vivek 2024’s Campaign Class Action RoboText Lawsuit
https://www.classaction.org/news/vivek-2024-election-campaign-hit-with-class-action-over-alleged-spam-texts
Political campaigns face lawsuits over robotexts
https://www.youtube.com/watch?v=sFhA_Bw5PA8
Americans Are Suing Campaigns for Robotexts
https://www.axios.com/2022/08/31/political-campaigns-robotext-lawsuits-2022-midterms
DNC Faces Defeat in High-Profile Robotext Lawsuit
https://www.kcur.org/news/2022-01-17/kansas-woman-sues-democratic-national-committee-over-robotexts-and-wins-60-000
Rising Tide of TCPA Suits Targets Political Robotexts
https://www.wiley.law/newsletter-TCPA-Suit-Against-political-Campaigns-Rise-Trump-Campaign-Facing-Separate-Class-Action-Suits
FCC Anti-Spam Rules Demand Political Accountability for Robotexts
https://thehill.com/policy/technology/3914374-politicians-must-be-held-accountable-to-fccs-new-anti-spamming-rules/
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