A2P vs P2P SMS: Is There Even a Difference Anymore? And Does it Matter under the TCPA?

Let me start by reminding everyone that what you read on this (incredibly awesome and helpful) blog is not legal advice.

Yes, I am a lawyer.

Yes, you can hire me.

But legal advice is tailored to your specific needs and use cases. This is just a blog.

HIRE A QUALIFIED LAWYER BEFORE YOU ENGAGE IN ANY OUTREACH PROGRAM!!! the law in this space moves incredibly quickly and the penalties for messing this up are massive.

Now, to the point.

So it has been nearly 4.5 years since the Supreme Court handed down the Facebook decision and there is still pretty wide confusion about its impacts on SMS messaging.

But with TCPA SMS DNC cases potentially subject to dismissal–read all about it— the distinction between ATDS and non-ATDS SMS has become more important than ever.

Backing up, the TCPA has two key provisions– its DNC provisions and its regulated technology provisions.

Regulated technology includes automated telephone dialing systems (ATDS.)

Despite the name, however, the U.S. Supreme Court has recognized whether a system is an ATDS has little to do with whether a system actually automatically dials numbers in a given situation. Rather what matters is the “capacity” to perform certain functionalities.

The functionalities that qualify a system as an ATDS are still somewhat mysterious because courts have had a very tough time explaining what it means to “store” a telephone number using a random or sequential number generator (a key part of the definition.) It probably does NOT mean the phone number itself has to be randomly or sequentially generated, but quite a few courts have so held.

What is crystal clear, however, is that human intervention–i.e. P2P clicking– is totally irrelevant in the equation. The Supreme Court basically said as much in footnote 6 of the Facebook decision. And even if it hadn’t the focus on the textual ATDS definition– which does not use the word “automatic” or “human” or “intervention”– pretty clarly slams the door on any argument that having a human being click a button somehow converts a system out of ATDS treatment.

Still many vendors–and users–of dialing systems seem to claim/believe that merely clicking a button somehow enhances the safety/legality of a messaging program. But it simply does not. Indeed the queuing required of most human intervention systems almost guarantees those systems are MORE risky than the pass-through one-to-one fully-automated API system involved in Facebook.

Stated differently: sometimes the more automatic a system is the less likely it is to be an ATDS.

To understand why you need to recognize the peculiar definition of an ATDS. Again it looks at “Storing” phone numbers using an ROSNG. But since “capacity” to perform this functionality is what matters– not how messages are actually being sent– anytime a system dictates what number is to be messaged the system may be an ATDS.

System’s like the Facebook alert system, on the other hand, respond in real time to real life events. This deterministic trigger assures the system is not “storing” numbers using an ROSNG.

Similarly, human selection systems– like Convoso’s Call Catalyst, Safe Select, or Drips Initiate platform– all have a human being determining which number comes next in a campaign– not just clicking a button.

So at bottom, P2P literally does NOTHING to protect a business in a TCPA case (although it does “feel” like you’re calling manually right?) What matters is the system’s configurations and latent capacity to perform functions that most out-of-the-box dialing systems DO have.

Now to be sure, it can be much easier to register numbers through TCR’s horrible 10DLC registration process if you can demonstrate P2P but that’s just the carriers requiring what the law does not– per usual.

So where does this leave us?

1. If you are paying more to use a P2P system–why?;
2. If you think a P2P system protects you– nope;
3. If you are using a P2P system to make calls that require consent you should probably make sure the system is not an ATDS!

Again, with DNC SMS cases potentially fading out here in the next few years, making sure you are not using an ATDS is critical.

I know there have been a lot less of these cases lately, but when a pro se Plaintiff can get past the pleadings stage in these suits, it looks dangerous to my eye.

Be smart folks.

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Chat soon.