HUGE TCPA NEWS: FCC Holds System That Text Platforms Requiring Manual Number Entry Are Not ATDS Under TCPA

A couple of big rulings from the FCC yesterday. The first pertains to text messages with the FCC granting P2P Alliance’s petition concerning automated text message platforms.

The FCC holds squarely:

if a texting platform actually “requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time” and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number, as suggested in the P2P Alliance Petition, then such platform would not be an “autodialer” that is subject to the TCPA.

This is big news for folks using text platforms that allow template-based, fast-paced texting, on a one-to-one (i.e. click-to-text) basis so long as the phone number is entered each time.

Notably the FCC specifically rejected the NCLC’s position that such platforms would enable marketers to spam people’s phones:

The TCPA does not and was not intended to stop every type of call.


The FCC also doubled-down on its previous rulings that express consent is to be presumed anytime the consumer provides the number directly to the caller:

The Commission has repeatedly made clear that “persons who knowingly release their telephone numbers” for a particular purpose “have in effect given their invitation or permission to be called at the number which they have given” for that purpose, absent instructions to the contrary.

The ruling is available here:– P2P Alliance Ruling

Notably the petition was filed back in May, 2018 so the FCC may be working through its backlog of petitions–just as Commissioner O’Rielly implied it might be when he joined our podcast a couple weeks back.  (Thanks again for joining us Commissioner!)

BUT we saw a second TCPA ruling from the FCC yesterday as well–the Baron is covering that one–holding that PRIOR express consent must actually be obtained PRIOR to a call (even in the healthcare context) so it isn’t all good news for the TCPA defense. That said, it certainly looks like TCPA issues may be moving back to the top of the Commission’s agenda.

We’ll obviously keep an eye on this for you.

Editor’s note: I made some edits to this article at 9:07 am pacific to note the ruling may not apply to all click-to-text systems.



  1. This ruling is not the picture of clarity, but it does open the door for an argument that an ATDS must have a random or sequential number generator. Just look at the plain language of the ruling. It first recognizes that the FCC’s interpretation of ATDS was vacated by the DC Circuit. It then says because a new FCC interpretation is pending, that the FCC will use the statutory definition. The ruling then repeatedly states that the statutory ATDS definition requires random or sequential number generation. This is the 7th and 11th’s (and maybe 3rd’s) statutory construction. So I’d argue that until the FCC issues another ATDS ruling, that this texting ruling supports the strict statutory definition of ATDS and rebuts the 9th and 2nd’s construction. May be that was not the FCC’s intent, but that’s the way it reads.

    1. Totally agree with your interpretation Matt A. I clearly read this to REQUIRE random or sequential generation to be an ATDS. Otherwise, there would have been no reason to specifically cite random or sequential. An uploaded list from which numbers are dialed is neither random nor sequential. Why are people not doing cartwheels over this ruling? Is it not the best thing short of striking TCPA in its entirety? Eric, can you pipe in on this?

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