In 1991 when The Telephone Consumer Protection Act (TCPA) was enacted, it was put into place to protect consumers from a rampant growth in the number of telephone marketing calls, unsolicited or otherwise. Three decades ago, most consumers were using landline phones and the world’s first text message wouldn’t be sent until a year later in December 1992. Needless to say, in 1991, Congress could not possibly know about the evolution of the mobile phone nor the advent of sending messages by SMS/text. For the past ten plus years, courts have been clarifying what the TCPA protects and how. Violations of TCPA can result in fines of up to $1,500 per incident/call and multimillion-dollar judgments against violators have been levied. Keeping up to date on what is permissible and what is not is vital to any organization.
ATDS Ambiguity
An Automated Telephone Dialing System (ATDS) is defined in the TCPA as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In 2015, the FCC released a Declaratory Ruling that stated “a piece of equipment can possess the requisite ‘capacity’ to satisfy the statutory definition of ‘autodialer’ even if, for example, it requires the addition of software to actually perform the functions described in the definition.” The ambiguity of these two sentences resulted in many lawsuits, fines, and settlements.
SCOTUS ATDS Decision
On April 1, 2021, the US Supreme Court (SCOTUS) issued a ruling on one particularly confusing and litigious aspect of the TCPA: what is or is not an ATDS. Previous lower courts were split on their interpretation of the breadth and definition of what was an ATDS. So, SCOTUS reviewed the language and intent of Congress when they were writing the TCPA and issued a unanimous decision specifically related to ATDS. SCOTUS ruled that SMS/text messages would not violate TCPA if the system sending them was not an ATDS and if the sender has an existing relationship with the recipient. Ok… but what exactly qualifies as an ATDS? SCOTUS went on to further clarify the definition of an autodialer. To be an ATDS, the system or equipment generating phone numbers to dial/text must use a random or sequential number generator. Read the full SCOTUS opinion here.
SCOTUS ATDS Decision Impact on Healthcare and Pharmacy
The SCOTUS opinion is beneficial for healthcare entities and pharmacies:
- It will reduce deceptive TCPA class action complaints from predatory lawyers
- It clarifies, at the federal level, that an organization no longer needs to secure consumer consent prior to sending SMS/text messages if the consumer data that they are using is derived from previous or current customers
Final Considerations
Due to the recent SCOTUS ruling, it is important to review your current policies related to sending SMS/text messages. It is important to note that the April 1 SCOTUS ruling does not supersede state laws governing ATDS, telemarketing, or consumer communication. Your organization will continue to need to evaluate, interpret, and implement policies based your counsel’s recommendations. Now is an excellent time to consider the types and success of consumer acquisition, promotional outreach, and patient engagement solutions you are currently using. When doing so, please consider contacting MarkeTouch.
MarkeTouch Media Solutions
For 20 years, MarkeTouch has been offering pharmacies and healthcare organizations a nearly unlimited number of patient engagement campaigns. Each campaign and service is specifically designed to acquire new patients, retain your valuable customer base, grow your business, and improve clinical outcomes and operational productivity. Contact us with questions or to learn more.
Until next time, take care.
Matt and Charles
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