FCC Offers Some Clarity on TCPA Rules

bigstock_Mobile_Phone_And_Dollar_Bank_N_2543038On Feb. 15, 2012, the FCC announced new rules implementing the Telephone Consumer Protection Act (“TCPA”).  Among other restrictions, the FCC expanded the need for companies to obtain prior express written consent before sending phone calls and text messages to consumers using an automated telephone dialing system. However, the FCC is just as subject to the law of unintended consequences as the rest of us, and the new rules have resulted in a virtual explosion of TCPA class action litigation, thanks in large part to the FCC’s failure to provide sufficient guidance on how to interpret its own rules.  

The FCC has received 24 inquiries from companies about how to obtain consent to send text messages, and has recently issued an interpretative order in response to two of them.  

The first order was in response to an inquiry from Cargo Airlines about how to obtain prior express consent for delivery notification texts. The FCC indicated that these types of texts and calls are beneficial to consumers and should therefore be exempt from the TCPA prior consent requirement so long as :(1) they are sent without any charge to the consumer; (2) delivery companies limit notifications to one per package; (3) the message is concise; and (4) the message is sent only to the telephone number for the package recipient.

The second interpretive order was issued in response to text messaging service GroupMe’s petition for clarity on the TCPA prior consent requirements for the transmission of informational text messages. GroupMe’s service allows users to create groups consisting of up to 50 friends with whom they can share text messages.  Before permitting users to send texts, the company requires them to agree to its terms of use, which require them to obtain consent from everyone in his or her group to receive informational text messages from GroupMe.

In its order, the FCC stated that services like GroupMe must obtain consent before sending informational messages, but such consent could be relayed by an intermediary (i.e., the person creating the group).   In other words, the FCC stated that the TCPA allows companies that send texts to rely upon the statement of a third party that it has consent to do so.  

The FCC did, however, “strongly urge” GroupMe “to ensure that group organizers do in fact obtain the requisite consent” and “encouraged” GroupMe to take adequate steps to make sure organizers were aware of the requirement to get consent as contained within the program terms.

When reviewing these orders to help establish a policy for obtaining the requisite TCPA consent, companies should keep two things in mind:  (1) FCC opinions are not necessarily dispositive in litigation; and (2) these opinions were specific to the facts presented to them in each inquiry.   

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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