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What Does Justice Kavanaugh Have to Do With SMS Marketing?


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In October 2018, Justice Brett Kavanaugh was sworn in as a United States Supreme Court Justice, a position that could have a lasting impact on the future of mobile marketing and the role of regulatory agencies in the US. In the video above, Tatango CEO Derek Johnson discusses possible future changes with TCPA attorney David Carter. If you prefer to read, see the summary below.


The Regulatory Role and the TCPA

For any company using SMS messaging, following the rules outlined in the Telephone Consumer Protection Act (TCPA) is vital. The Federal Communications Commission (FCC) applies and enforces these laws that are a central part of the mobile marketing industry. In recent history, regulatory agencies like the FCC have interpreted how the law is enforced within their arena. They can uphold the letter of the law while shifting the real-world outcomes. This power had become broader over time. 

This uncertainty can be difficult for companies working under these laws. If a brand can’t count on a consistent and lasting interpretation of laws, it’s hard to expand and plan confidently. Should the courts defer to these regulatory agencies whenever a vague issue needs definition? This practice is known as a deference doctrine. Justice Kavanaugh’s role in the Supreme Court could lead to the permanent elimination of this doctrine.


Justice Brett Kavanaugh and the TCPA

In his time on the Court of Appeals, Justice Kavanaugh showed a desire to shift the balance of power between the courts and agencies like the FCC. His influence on the Supreme Court may lead to challenges and changes to deference doctrines. His past opinions indicate that Kavanaugh believes political whim shouldn’t dictate how the same words are applied. 

A Supreme Court verdict on this issue could have a lasting impact on all regulatory agencies, making their power more focused and narrow. Justice Kavanaugh is also tuned into the dynamics between the FCC and the TCPA, as evidenced by his past decisions on the TCPA,. With that in mind, going forward, we may see a shift in how the mobile marketing industry operates. 


Looking Ahead

These important changes could be forthcoming with the recent shifts in the Supreme Court’s leanings. The “accordion effect” of the interpretation of laws being pulled back and forth by each political administration is unsustainable and can negatively impact growth within many areas of the American economy. If this issue comes before the current Supreme Court, a decision could herald a historic shift in the role of regulation. 

Uncertainty makes operating a business challenging, especially for brands in the technology industry. As technology continues to evolve and innovation expands what’s possible, laws need to be updated efficiently to avoid limiting that expansion. With a new member on our nation’s most influential judicial body, a significant change may be on the way. 


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