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One year later – Did the Supreme Court Make Texting More Accessible for States and Medicaid Providers?

younger male looking at cell phone

2021 was a year of major developments in the arena of text messaging, particularly when the United States Supreme Court introduced rationality when it ruled that Facebook did not violate the Telephone Consumer Protection Act (TCPA) when it used automated text messages to send security alerts to consumers’ cell phones.

With 95% of text messages being read within the first 3 minutes, SMS is becoming a prominent and increasingly common channel that our health plan, health system and employer clients are using to reach and engage consumers. To understand the implications of this ruling, we asked our General Counsel, Ian O’Neill, to weigh in. Here’s what he said:

The big takeaway was that SCOTUS adopted a narrow definition for an “autodialer” under the TCPA. Specifically, an autodialer device must have the capacity “either to store, or to produce, a telephone number using a random or sequential number generator.”

Under this narrow definition, organizations like our clients (health plans, health systems, employers and other organizations) actually gained more freedom to use automated text messages to reach targeted consumers. Targeted being the key word here.

Take Virgin Pulse’s technology as an example. We don’t use random or sequential numbers. Instead, we send messages to deliberately curated lists, such as existing consumer contacts or carefully assembled prospect lists, all of which are neither random nor sequential. Under this new ruling, messages sent to these types of lists are excluded from TCPA.

Additionally, State Agency messages may fall into several TCPA exemptions.

In the time since SCOTUS issued its ruling in Duguid, District courts have been wrestling with some key questions left open by the decision and what their decisions mean for businesses that use text messaging to communicate with consumers.

One oft-litigated issue that SCOTUS did not directly address in Duguid was the portion of the TCPA’s ATDS definition that focuses on equipment’s “capacity” to store or produce random or sequential numbers. Seizing on that opening, TCPA plaintiffs have continued to argue that the only thing necessary to find that a technology is an ATDS is whether it has the mere capacity to randomly or sequentially produce or store telephone numbers to be called—not whether it has the present capability to do so. This attempt by plaintiff’s attorneys to find an end-run around Duguid has been generally met with resistance; however, for example, in Brickman v. Facebook, the Northern District of California explained that the mere fact that a technology selects the order in which to place phone calls or text messages would not automatically implicate the use of an ATDS and it is necessary that the telephone numbers called to actually be randomly or sequentially generated.

Similarly, courts have required a greater degree of proof in order to achieve standing to bring a TCPA claim, and to require more than a plausible allegation that the defendant placed the calls using an ATDS. These courts consider whether the plaintiff gave his phone number to the defendant, or whether the defendant instead generated plaintiff’s phone number.

But what about prior express consent?
Good question, we get asked about this a lot from clients. As long as text messages are targeted to deliberately curated lists, per the Supreme Court, sending them is legal even without prior express consent because such lists do not constitute an autodialer under the TCPA.

Having pioneered programs like text4baby, Virgin Pulse has a lot of experience using SMS messages to effectively reach and engage individuals. I’d encourage organizations who aren’t texting yet to use this ruling as an opportunity to start a conversation with their compliance teams about adding this channel. There are so many things texting can be used for – to send appointment reminders, share important COVID-19 updates, and even to drive medication compliance. Organizations shouldn’t leave this channel on the table any longer because of compliance concerns alone.

Does this ruling apply to automated voice calls too?
No, this ruling specifically applies to using automated text messages for cellular numbers. However, organizations should know about different changes that were made to the TCPA in December 2020 that will soon impact automated voice (IVR) calls made to residential landlines. These changes will soon limit the number of informational automated calls an organization can send each month, and for covered entities, each day. Additionally, all automated calls will require an opt-out mechanism.

The good news is that these restrictions will not apply if you have prior express consent of the called party. So, working now to get that prior express consent is an important step organizations who use automated calls for landlines need to be working on now.

This feels like a lot to take in. What advice do you have for organizations trying to figure out how to adjust?
First, remember that you aren’t alone in navigating regulatory changes. There are legal teams like ours at Virgin Pulse who are well-versed in TCPA compliance and staying informed on new regulations in order to help clients stay compliant. At Virgin Pulse, we help our clients determine what actions they need to plan for to remain compliant – like identifying now which programs may need to be adjusted to incorporate the required opt-out messaging.

Second, and I’m repeating myself here, but outreach teams should use these regulatory changes as an opportunity to start conversations with their compliance teams about adding new digital outreach channels, specifically text messaging.

And last but definitely not least, these regulations don’t give organizations a free pass to send blast text and automated calls. Instead, organizations should look at the big digital engagement picture, and see how they can better orchestrate outreach across the entity to create an overall better consumer experience.

Have more questions about TCPA compliance?
Whether you’re an existing client or not, Virgin Pulse can help you think through the implications of these rulings and what you need to be doing to respond. Let’s talk.