SO WHAT’S UP WITH ALL THESE “I CAN’T CALL BACK THE NUMBER THAT TEXTED ME” CASES: The Good, the Bad, and the Ugly of the New (Kinda Dumb) FTSA and OTSA Theory Clogging Court Dockets… –

The World of the Telephone Consumer Protection Act
It was inevitable following the big amendment to the FTSA that Plaintiff’s lawyers were going to begin focusing on the Oklahoma Telephone Solicitation Act.
Less foreseeable, however, is the trend by Plaintiff’s lawyers toward pursuing a new theory under section 501.059(8)(b) of the Florida Act (and the corollary OTSA provision) related to callability of numbers displayed on caller ids.
For the uninitiated,  FTSA Section  501.059 (8)(b) and Oklahoma Title 15 Section 775c.3 each generally make it unlawful to fail to transmit accurate caller ID information and requires that a seller or marketer can actually be reached via telephone at any number transmitted on the caller ID.
This seems fine and good because all legitimate businesses will easily be able to meet these requirements right?
Well, not necessarily.
Under both the FTSA and OTSA a text message counts as a telephone solicitation. That means that the requirements of 501.059/775c.3 apply to SMS messages and not just to voice channel calls. And this is a BIG deal for a couple of reasons.
First, large volume texters commonly use shortcodes to assure connections. Shortcodes are six digit numbers provided by aggregators that assure higher throughput for SMS messages, but also come with very stringent standards. For instance a company generally cannot obtain a shortcode unless they meet CTIA guidelines, have consent for every message they send, include double opt in capabilities, and provide stop functionality with every message. In short, shortcode messages are likely desirable by the consumers that receive those messages.
For all their benefits, the one thing about shortcodes– they cannot receive inbound calls. So the only way to communicate with a shortcode message is via text.
Now rather obviously, the state legislatures in Oklahoma and Florida were not thinking about text messages when they drafted 501.059/775c.3–they were thinking about phone calls and assuring consumers can call businesses back at numbers used to call them. Makes sense and that is a laudable goal.
But they infused ambiguity into their statutes by conflating texts and calls in some sections of the statutes and not cleaning it up in the sections related to caller identification requirements. Not good.
Mercifully, the issue is pretty easy to cut through in the case of shortcodes. The statutory provisions read as follows: If a telephone number is made available through a caller identification service as a result of a telephonic sales call, the solicitor must ensure that telephone number is capable of receiving telephone calls and must connect the original call recipient, upon calling such number, to the telephone solicitor or to the seller on behalf of which a telephonic sales call was placed.
Now you can pretty much stop reading after the bolded section. The requirement that a phone number be callable is limited to–wait for it–telephone numbers. And a shortcode is not a telephone number. So… there you go. The entire theory that a shortcode must be callable fails because a shortcode is not a telephone number to begin with.
Per Wikipedia: Short codes, or short numbers, are short digit sequences, significantly shorter than telephone numbers, that are used to address messages in the Multimedia Messaging System and short message service systems of mobile network operators. 
Since they are shorter than telephone numbers they are… not telephone numbers.
But that’s hasn’t stopped a huge volume of new OTSA/FTSA suits from being filed arguing that a Plaintiff can sue anytime they receive a text from a shortcode. And this is just preposterous in my view.
So that’s the GOOD news here–the “I can’t call back the number that texted me” theory is frivolous in the context of a shortcode. These cases should go nowhere and I encourage folks to fight them rather than settlement them so that they go away once and for all.
But let’s get to the bad.
The theory is less frivolous in the case of 10DLC text messages. Those numbers are–at least seemingly–telephone numbers (although the argument can be made that they are not telephone numbers either since they are not assigned to a telephone service and but only registered for SMS communication–which is an information service under the Communications Act.)
So this poses a challenge for large volume texters–what can be done?
Well, first let’s re-visit the requirements of the statutes.
First, to comply with the statutes, a Company has to transmit the “originating telephone number,” which I don’t see as a problem.
Second, a company has to transmit “the name of the telephone solicitor” or  “the name of the seller on behalf of which a telephonic sales call is placed.” So the sender can use its own name or the seller’s name in transmitting messages, although it is unclear precisely how this requirement plays out in the context of a text message when no caller ID displays the name on a message–yet one more reasons why this theory is a square peg, round hole situation.
Third, the telephone number displayed “must be capable of receiving telephone callsand “must connect… to the telephone solicitor or to the seller on behalf of which a telephonic sales call was placed.” So the phone number must “connect” to somebody—either a marketer or a seller.
It is this last requirement that is driving the litigation. And there are several responses. As already noted in the shortcode context, a shortcode is not a telephone number. And in the context of 10DLC the number may also not be a telephone number. Further, the statute requires that a caller identification service be in use and it is far from clear that SMS messages utilize any such service. Further, even assuming both of these theories can be surmounted, the fact that a 10DLC number can receive text messages–assuming it can–demonstrates that the statute has been complied with– if a text message is a telephone solicitation it follows that it is also a “telephone call” for purposes of these sections.
Still though none of these theories have been tested as the volume of cases filed has far outpaced the ability of courts to adjudicate them and that is the UGLY news here– we may have to wait (and suffer) through dozens more cases being filed before we have clear guidance from the Courts that the Czar was right all along, which of course I am.
For now then, there is nothing for texters to do but endure these new filings and fight them–especially the shortcode versions. The 10DLC versions have slightly more merit so if you have the ability to migrate to shortcode messages–or to 800 number solutions that have callback capabilities deployed–you should DEFINITELY consider it. (Not legal advice, just obvious stuff.)
If you have questions I am always around.
The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.
Hey, Troutman, you really need to get someone to proof read your stuff. You make references in this article to Florida Statute 501.069. Trouble is, there is no such section number. I think that you meant 501.059. In any event, my experience is that over 90 percent of the calls that I receive have bogus caller identification numbers displayed. Even some of your allegedly “honest” clients.
“Shortcodes are (five or) six digit numbers provided by aggregators that assure higher throughput for SMS messages, but also come with very stringent standards. For instance a company generally cannot obtain a shortcode unless they meet CTIA guidelines, have consent for every message they send, include double opt in capabilities, and provide stop functionality with every message. In short, shortcode messages are likely desirable by the consumers that receive those messages.”
WTF!?!?!?! What planet do you live on???
Here on Earth, short codes, actually show up on phone bills as actual phone numbers (if you allow image uploads I’ll prove it) EX: (222) 225-3864* They do NOT include any of the other ‘features’** you claim, they are NOT more desirable – they often contain pornographic, ED pill ads ‘endorsed’ by Mark Cuban/Shark Tank, and Dr OZ to name a few.
There used to be a ‘short-code directory’ available online to search out who was assigned to said short codes – but sometime about a year or so ago Tatango took control of it, and pulled it down.
Attempts by a consumer to get even a reply out of CTIA is futile – there is NO transparency for most telemarketing short codes that I can find and 10DLC are just as bad…go ahead just try to reply ‘STOP’ to a 10DLC you’ll get “Your MSG could not be DELIVERED because SmtpNonReplyableMgsg”
*of course (222) = not in use; available for non-geographic assignment, per Wikipedia
**Legit users of short codes like CVS and governmental agencies follow the guidelines – but NOT the marketers slamming my phone
I still don’t understand if the amendments allow us to claim an EBR defense if calling after 8PM in response to an inquiry. Nobody seems to know!

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