Federal Communications Commission issues long-awaited declaratory ruling regarding peer-to-peer texting, but key questions remain unanswered

Monday, June 29, 2020

In light of the COVID-19 pandemic, political committees have started gearing up their peer-to-peer (“P2P”) text messaging efforts in hopes of reaching new voters in the months leading up to the 2020 general election.

On June 26, 2020, the Federal Communications Commission (“FCC”) issued a long-awaited declaratory ruling for The P2P Alliance, a nonpartisan coalition representing providers and users of P2P texting services. The ruling held that P2P text messages sent using a particular type of platform are not subject to the Telephone Consumer Protection Act (“TCPA”) autodialer restrictions.

The FCC clarified that a P2P platform making calls and texts to a wireless phone does not constitute an autodialer under TCPA if the platform:

  1. “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time”; and
  2. “lacks the ability to transmit more than one message without a human manually dialing each recipient’s number.”

Notably, the FCC did not explicitly rule on whether P2P Alliance’s platform would be considered in compliance with the TCPA.

Even though this decision issues some guidance to the regulated community, political committees should still exercise caution when selecting and using this technology. The FCC did not clarify what it means for a political committee to ensure that a person is “actively and affirmatively manually dialing” a phone number, nor did the FCC elaborate when the technology would have the ability to transmit more than one message without a human element. At a minimum, political committees should confirm with their vendor that the technology requires a text message to be sent by a single sender to a single recipient.

Political committees should also pay close attention to how the technology stores and produces phone numbers, as the FCC has not ruled on whether this should be a factor in determining whether the TCPA applies. In its petition, The P2P Alliance stated its platform did not have the capacity to store, upload, or produce telephone numbers using a random or sequential generator.

The FCC also confirmed that a party using an autodialer could also escape TCPA liability if the party obtained the recipient’s prior consent. To the extent a person has knowingly released their number to a campaign, the call or text would likely be permissible.


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