Postscript is thrilled to announce David Carter as its new Head of Litigation and Regulatory Policy. The addition of David is a boon to Postscript’s ability to remain a best-in-class, market-leading platform that empowers compliant growth for its clients. 

Here at Postscript, we consider spammy sending a threat to the long-term viability of the SMS channel (we’d rather it not go the way of email). Fortunately, this is also what the TCPA wants—to make sure brands deliver a positive SMS experience for subscribers. People want to get the messages that they want to get and don’t want to get messages they don’t want to get (write that down). 

We sat down with David to learn more about his passion for protecting the value of SMS as a channel and his decision to join Postscript’s compliance-focused team:

A: For more than 15 years, I was in private practice, most recently as an Equity Partner at the AmLaw 100 firm Womble Bond Dickinson in Washington, DC, where I focused on legal practice on the intersection of litigation and telecommunications regulation.  I founded and led the TCPA Defense Force, a team of lawyers dedicated to helping companies large and small comply with TCPA and state law equivalents.  We worked with clients on establishing compliance programs, defending litigation when it did arise, and working with federal regulators to encourage the adoption of policies that protected consumers while reducing the risks of frivolous litigation.  

A: While you asked for my own words, I believe the best starting point for describing the TCPA is actually from Supreme Court Chief Justice John Roberts, who described the federal statute as “the strangest statute I have ever seen,” and that’s saying a lot when you think about all of the laws that Congress has passed.  

At its core, the TCPA is a statute adopted in 1991 - in the earliest days of mobile phones - that was meant to protect hard-working Americans from unwanted calls to their home phones during family dinners and consumers from incurring significant charges from a telemarketer calling their mobile phones.  Keep in mind that in 1991, consumers paid high per-minute rates for every call that they answered on their car phones, SMS service had not even debuted (that would not become available on even a limited basis until November of 1993), and most families had a single phone line at their home.  

Since 1991, Congress has not updated the law, but the Federal Communications Commission has consistently sought to expand the law’s reach, including automated text messages.  What makes the law so strange is a potent combination of five points:

1. The law provides for statutory damages of $500 per message for anyone who receives an unlawful text message sent using an automated dialing system;

2. The law imposes this liability on text message senders that violate the law even if there is no evidence that they intended to do so (indeed, intentional violators face even stiffer penalties of $1,500 per message);

3. There is a private right of action, permitting individuals to pursue their own claims in courts across the country;

4. While cases can be brought individually, it is also possible for plaintiffs to pursue TCPA violations as a class action, meaning they can seek to hold the company liable for damages to everyone else who received unlawful text messages and 

5. There is no cap on the amount of damages that can be awarded.

To my knowledge, there is no other law quite like the TCPA.  For example, statutes like the Fair Debt Collection Practice Act limit class action damages to 1% of the defendant’s net worth. 

A: The single most important thing brands can do to protect themselves from SMS litigation is to take compliance seriously. If a brand takes compliance seriously and works with an SMS provider that prioritizes compliance, it can do incredibly well in building brand awareness and loyalty.  When managed responsibly, it is a truly powerful means of communication and the #1 channel for revenue growth, but that requires both education and the willingness to avoid unnecessary risks.  

By way of example, I get nervous when I see SMS providers and customers pushing for single opt-in vs. double opt-in just because it may create faster list growth and more SMS revenues in the short term because it is likely to cost them far more in the long term.  Brands that think about the long-term and prioritize risk reduction want a large, healthy list of subscribers who are happy to receive their SMS campaigns. 

A: I was lucky enough to begin working with the co-founders as outside counsel in the early days of Postscript.  Even then, they could see how vital a robust compliance program would be to Postscript’s market success and their desire to be a true partner with their customers.  Over the years, I have been impressed with the continued growth and success of the company and the leadership it has shown in the ecommerce ecosystem.  I’m excited to be a part of continuing to build on that solid foundation by being able to collaborate with the legal and compliance team and others in the business daily.  

A: The scariest thing I’ve seen in the SMS litigation space is the impact of uncapped statutory damages.  For example, a recent case from Oregon involving 1.8 million pre-recorded voice calls (not SMS) produced a jury award of $925 million. Uncapped damages can make compliance risks quite literally incalculable. 

A: One of the primary things that Postscript does to protect its customers regarding SMS litigation is to proactively monitor changing laws and regulations, often being first-to-market with new compliance features in its platform.

A: Perhaps the most important reason is that “the law” is constantly changing when it comes to SMS marketing.  In addition to ongoing changes made by the Federal Communications Commission, various state legislatures are adopting new laws, and compliance requirements are required from CTIA and carriers.  Understanding and reacting promptly to the changing landscape requires a lot of time, attention, and effort, so brands should work with a market leader who has made a long-term commitment to compliance, and can quickly implement compliance safeguards into their actual product.  

A: I’m excited that I have the privilege of engaging with Postscript customers regularly in my new role.  I’ve already enjoyed connecting with the founders of some incredible Postscript brands over compliance-related conversations and the in-house counsel for some of the large enterprise clients considering a shift to Postscript and conducting their due diligence.  

In addition, I will be heading up our policy efforts here at Postscript, which will include helping bring the industry together to work collaboratively with the FCC and legislators to implement policies that protect consumers while disincentivizing frivolous litigation.    

A: That’s a hard choice, as so many Postscript clients have incredibly enjoyable SMS programs. One standout has to be Groove Life, as I know firsthand how dedicated they are to a top-notch, engaging, and compliant SMS strategy. 

Postscript takes a product-led approach to compliance, meaning we build compliance safeguards into our app wherever possible so that brands can spend less time trying to keep up with the ever-changing compliance landscape and focus on growing, instead. If you’d like to learn more about our industry-leading compliance tools, reach out!