The Federal Communications Commission (FCC) adopted two declaratory rulings that clarified the applicability of the Telephone Consumer Protection Act’s (TCPA) consent requirements regarding informational text messages. While the rulings in each are limited to the specific requests set forth in the petitions, they include reasoning helpful for businesses looking for ways to reach their customers without running afoul of the TCPA.
The TCPA, enacted in 1991, seeks to regulate practices that threaten consumer privacy and public safety. The TCPA and the FCC’s implementing rules prohibit, among other things, the use of an artificial or prerecorded voice or an automatic telephone dialing system to make a non-emergency, informational, or other noncommercial call without “prior express consent” to cellular telephones. These prohibitions extend to both voice calls and text messages.
The TCPA provides a private right of action and per violation penalties. The plaintiffs’ class action bar has therefore aggressively pursued TCPA class action litigation. Given the litigation costs and ambiguity of the TCPA, companies have submitted dozens of TCPA petitions seeking clarification. The CAA and GroupMe Orders provide welcome clarification for informational text messages.
The CAA and GroupMe Orders
GroupMe: GroupMe is a free social networking application that allows individuals to create and join text-based groups to communicate with one another. To comply with TCPA obligations, GroupMe’s terms of service require group creators to obtain consent from other group members to receive group text messages. When an individual joins a GroupMe group, he or she receives a series of automatic administrative text messages from GroupMe about the ground and the service. In its petition, GroupMe requested that the FCC clarify that for non-telemarketing voice calls or text messages to wireless numbers, the caller can rely on a representation from an intermediary, i.e., a group creator, that he or she has obtained the requisite consent from the consumer to receive such calls or text messages. In the GroupMe Order, the FCC clarified that text-based social networks may send administrative text messages confirming consumers’ interest in joining text message groups, without violating the TCPA, when consumers give express consent to participate in the group, even when that consent is conveyed to the text-based social network by an intermediary.
CAA: The Cargo Airline Association is a nationwide voice for members of the all-cargo air carrier industry, and others in the air cargo marketplace that depend on these services. In its petition, the CAA requested clarification that for non-telemarketing, informational calls related to package delivery sent via voice or text messages to wireless numbers, the package delivery company can rely upon a representation from a package sender that it has obtained the requisite consent from the consumer. In the CAA Order, the FCC granted an exemption that allows package delivery companies to alert wireless consumers about their packages subject to a set of conditions designed to protect the consumers’ privacy.
Consumers are increasingly relying on smartphones for day-to-day communications, and companies want to provide better customer service by communicating with their customers through those devises.
While the CAA and GroupMe Orders are limited to their facts, they include business-friendly language that clarifies some of the uncertainty surrounding the TCPA. The GroupMe Order, for example, acknowledged that the TCPA is ambiguous with respect to how consent may be obtained and rejected claims that the TCPA requires recipients themselves to directly consent to receiving informational messages. It also includes helpful language for interpreting the meaning of “prior express consent” in the non-telemarketing context. Based on the agency’s 2008 ACA Order, the FCC concluded that a consumer’s “consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were made by a third party.” Finally, in both decisions, the FCC agreed that the messages at issue would facilitate “normal,” “expected,” and “desired” communications in a manner that still preserves the intended protections of the TCPA.
In conclusion, these Orders may make it more difficult for TCPA plaintiffs that provided their wireless telephone number in connection with a transaction to argue that they did not provide “prior express consent” to receive autodialed or prerecorded telephone calls or text messages related to the transaction, whether from a party to the transaction or from a related third party.