The Telephone Consumer Protection Act (TCPA) has long been a cornerstone of regulation for businesses and individuals engaging in telemarketing and text messaging in the United States. Enacted in 1991, the TCPA aims to protect consumers from unwanted communications, particularly those made using automated systems. A key focus of the law is the use of “automatic telephone dialing systems” (autodialers), which are subject to strict rules, including the requirement of prior express consent from recipients before sending certain types of messages. However, as communication technology has evolved—especially with the rise of text messaging—the application of the TCPA has faced ongoing interpretation and clarification by the Federal Communications Commission (FCC) and the courts.

One significant point of debate has been whether certain texting systems qualify as autodialers under the TCPA, and if not, what rules apply to them. This question became particularly relevant with the growing use of peer-to-peer (P2P) texting platforms, which allow users to send messages manually rather than through fully automated processes. Businesses, advocacy groups, and legal experts sought clarity on how these systems fit within the TCPA framework, leading to a pivotal FCC ruling in 2020 that addressed this very issue.

FCC Declaratory Ruling on P2P Texting

On June 25, 2020, the FCC issued Declaratory Ruling DA 20-670, clarifying that text messaging systems are not considered autodialers under the TCPA if they require a person to manually dial each number and send each message individually. This means two-way or peer-to-peer (P2P) texting systems that rely on human intervention are not subject to the TCPA’s restrictions on autodialed messages.

The FCC’s June 25, 2020 ruling did not directly address whether prior consent is required for a single, manually-sent initial text. However, since the TCPA’s restrictions apply only to autodialers, and the ruling confirmed that messages sent manually one-by-one with human action are not from autodialers, such messages do not require prior express consent under the TCPA.

Therefore, it is legally reasonable — though not explicitly stated — to send a single, manually-sent initial message to request consent, as long as no further messages are sent without that consent.

Consumer and Governmental Affairs Bureau Issues Declaratory Ruling in P2P Alliance Petition for Clarification: This Declaratory Ruling, issued by the Consumer and Governmental Affairs Bureau under DA/FCC # DA-20-670, Docket No 02-278, is documented in 35 FCC Rcd 6526 (8) and available as DA-20-670A1_Rcd.pdf.

Access it at: https://www.fcc.gov/document/cgb-issues-declaratory-ruling-p2p-alliance-petition.

This ruling built on earlier interpretations and was later reinforced by the Supreme Court’s 2021 decision in Facebook v. Duguid, which clarified that an autodialer must use a random or sequential number generator to fall under the TCPA’s scope. Together, these developments provide a clearer path for businesses and individuals using manual texting systems while navigating compliance with federal regulations.

Definition: Random or Sequential Number Generator

A random or sequential number generator is any system or logic that:

1. Random Number Generator:
   • Produces random 10-digit phone numbers, like lottery picks.
   • Example: +15551234567, +15559873629, etc., selected randomly without any input list.
2. Sequential Number Generator:
   • Produces phone numbers in a fixed numeric order.
   • Example: +15550000001, +15550000002, +15550000003…

So, if you click “Send” for each message and do not use a random or sequential number generator, you’re not using an autodialer = not TCPA-covered.

Commercial Message Types

Commercial message types always require consent from the recipient before subsequent messages can be sent according to the TCPA and FCC.

Commercial messages may or may not be limited to the following types:

• Transactional
• Debt (collections, etc.)
• Financial (banking, accounting, bookkeeping, etc.)
• Health (HIPAA)
• Marketing
• Upselling
• Promotions

How the SendSweep App Stays TCPA/FCC Compliant

Optional: Automation with Human Trigger
Want to semi-automate cold outreach, but still comply? Here’s how:

1. Human selects recipient(s) manually.
2. Human types the message body. Human optionally* selects and adds attachments and/or a subject line to the message.
3. Human clicks “Send Message.”
4. App sends the consent request message to selected number(s).

This still qualifies as “human intervention.”

Crafting the Perfect Message

• Use neutral or inquiry-based wording in the first cold message.
• Do not make your first message/contact purely promotional. This may invite scrutiny.

Example:

Hi, this is [YourName].
Do you need help with [short benefit statement]?
Is it okay if I text you more about this?
Reply Yes to Opt-In. Reply No to Opt-Out.

If They Say “STOP” or “No” or Don’t Respond…

• DO NOT send any more texts.
• Keep a log of that number in the SendSweep app Blacklist. This happens automatically if your recipient responds with a Keyword that exists in the SendSweep app Blacklist. You can set up your own custom Blacklist Keywords. “STOP” is the default Blacklist Keyword in the SendSweep app.

This is not legal advice. Consult an attorney in your jurisdiction for legal advice.