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Facebook case may not be as helpful as we thought

| May 21, 2021 | Marketing Law

In our earlier post, we discussed how the Supreme Court held that the term “automatic telephone dialing system” defined within he Telephone Consumer Protection Act (TCPA) is not one to apply broadly. The holding seems like a big win for businesses, opening the door to marketing campaigns and other ways to reach out to consumers. However we did end the post, available here, with a note of caution. We encouraged business leaders to use this win carefully and plan marketing strategies wisely.

Why do businesses need to continue to be careful with the TCPA?

A recent case provides an example of how the win is not a free pass for businesses to move forward with text message blasts to past, current and potential future clients as long as the method does not utilize an automatic telephone dialing system to send out the messages. In this most recent case, the business filed a motion with the court to dismiss the case before it moved forward. The case was relatively early in the court process, only at the pleadings stage. The court denied the motion, stating that although the business’ system to reach consumers may not have used an automatic telephone dialing system, it still had the capacity to store numbers and use a sequential and random generator, thus fitting within the definition noted above.

What should business leaders learn from this case?

That marketing strategies that utilize mass contact to clients may come under review. Depending on how the messages are generated, they could still run afoul of the TCPA.

How can my business avoid a TCPA violation?

A little proactive work can help avoid a big problem. Internal audits can find potential issues and provide an opportunity to fix them before they grow into a bigger issue. If facing an allegation, a strong defense can help reduce or even defeat the claim. The main takeaway is the importance of knowing the law, how it is used and how to advocate for your business’ interests.