New House Bill Threatens to Expand the TCPA to Regulate Text Messages

Last week, six House Democrats introduced H.R. 8334, the Robotext Scam Prevention Act, which seeks to expand federal telemarketing laws to, among other things, expressly cover text messaging.      

It would likely surprise some people to hear that the Telephone Consumer Protection Act (“TCPA”)—the most-consequential statute for consumer telemarketing, usually cited as the largest feeder of consumer class actions in federal courts—does not reference texts at all.  The FCC has tried to interpret text messages into the law and the Ninth Circuit has held that text messages are covered, but that conclusion has not been definitively reached in all courts or for all purposes.         

The Supreme Court had a recent opportunity to speak on this issue as part of last year’s significant ruling in Facebook v. Duguid, 529 U.S. __ (2021).  In Facebook, the Court narrowed the definition courts should apply for an “automatic telephone dialing system” (ATDS) and held that Facebook did not violate the TCPA when it sent text messages to Noah Duguid regardless of his alleged lack of consent.  But the Supreme Court did not speak on the threshold question of whether a text message is even covered by the statute because the parties never asked it to.  In a footnote, the Court said: “Neither party disputes that the TCPA’s prohibition also extends to sending unsolicited text messages.  We therefore assume that it does without considering or resolving that issue.” Id., n.2 (citation omitted).     

In response to Facebook, H.R. 8334 seeks to expand the definition

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