PRLA Restaurant & Lodging Matters Winter 2020

26  • PENNSYLVANIA RESTAURANT & LODGING matters • Winter 2020 LEGAL DOCKET The Attorney ask Stan L. Tinter, Esquire SHUMAKER WILLIAMS, P.C. General Counsel, Pennsylvania Restaurant & Lodging Association Stan L. Tinter, Esquire THE TELEPHONE CONSUMER Protection Act (TCPA) is a federal statute that regulates the use of Automatic Telephone Dialing Systems (ATDS). The TCPA defines the term “automatic telephone dialing system” 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 addition to phone calls, the FCC and courts have determined that text messages constitute “making a call” and falls within the scope of the TCPA. As technology has evolved, the FCC issued a Declaratory Ruling and Order and attempted to clarify the definition of ATDS to include any device that did or had the potential to store or produce telephone numbers to be called, using a random or sequential number generator. However, this order complicated things and the D.C. Circuit Court struck the Order down and declared that it too broad. Since then, courts around the country have been split on what constitutes an ATDS. As for how Pennsylvania and its Federal Court’s determine what is a ATDS, a recent decision made by the Western District of Pennsylvania in Smith v. Navient Solutions, LLC , 1 made it clear that under the earlier decision in Dominguez v. Yahoo Inc. , 2 a “predictive dialer” is not per se an ATDS under the TCPA and that the dialer must have the present capacity to generate numbers and dial them without human intervention. When it comes to text messages, the type of consent required depends on the content of the message. If the text message “includes or introduces an advertisement or constitutes telemarketing,” the sender is required to obtain “prior express written consent” of the recipient. 3 To constitute advertising, the text message must contain “material advertising the commercial availability or quality of any property, goods, or services.” 4 To constitute telemarketing, the text message must be “for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” 5 If the text message does not contain advertising and is not telemarketing, the requirements for prior express consent are less stringent. A consumer must only “knowingly” agree to receive such messages by providing his phone number for the reasons served by the message (i.e., to transact the business contemplated when the recipient provided his number). The Telephone Consumer Protection Act Refresher for the Hospitality Industry As technology has evolved, the FCC issued a Declaratory Ruling and Order and attempted to clarify the definition of ATDS to include any device that did or had the potential to store or produce telephone numbers to be called, using a random or sequential number generator. 1. 2019 U.S. Dist. LEXIS 131231 (W.D. Pa. Aug. 4, 2019). 2. 894 F.3d 116 (3d Cir. 2018). 3. 47 C.F.R. at §§ 64.1200(a)(1) and (2). 4. 47 C.F.R. § 64.1200(f)(1). 5. 47 C.F.R. § 64.1200(f)(12).The TCPA does provide an exception to this rule for those with an “established business relationship” with the consumer in regards to facsimile messages ONLY. 6. 351 F.Supp.3d 1257 (N.D. Cal. 2018).