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FCC Takes First Steps to Clarify TCPA Rules

In a pair of rulings released late yesterday afternoon, the Federal Communications Commission (FCC) acted on a pair of petitions asking the agency to clarify its interpretation of the Telephone Consumer Protection Act of 1991 (TCPA) and the FCC's implementing regulations as they apply to the use of autodialing equipment to convey text-based, non-telemarketing notices to consumers. As we have previously discussed, since the FCC amended its TCPA regulations in 2012, numerous parties filed petitions seeking clarification on the scope of the revised rules in certain settings. Yesterday's items deal with two such requests – one from GroupMe and the other from the Cargo Airline Association (CAA).

The GroupMe Declaratory Ruling

As described in the FCC’s Declaratory Ruling, GroupMe provides a free text/SMS messaging service for groups of up to 50 members. After agreeing to GroupMe's terms of service – which include a representation that the group owner has obtained all necessary consents under the TCPA – a group owner can register wireless phone numbers to receive text messages through the service. Users can then communicate over the GroupMe mobile app or over standard text or SMS messaging.

In its petition, GroupMe asked the FCC to clarify two issues under its TCPA rules:

  • The meaning of the term “capacity” in the statutory and regulatory definition of “automatic telephone dialing system” (ATDS); and
  • Whether the consents required under the TCPA may be given through intermediaries.

Because other parties subsequently raised the “capacity” issue, the FCC declined to rule on GroupMe's first request for clarification of the ATDS definition and instead focused its Declaratory Ruling solely on the issue of whether GroupMe could obtain the TCPA’s required consents through intermediaries. After finding that the TCPA is ambiguous on the method of obtaining consent from a mobile phone user, the FCC determined that the “TCPA does not prohibit a caller, such as GroupMe, from obtaining the consumer’s prior express consent through an intermediary.” The FCC cautioned, however that “if consent was not, in fact, obtained, the sender, such as GroupMe, remains liable.”

The CAA Order

In response to an unopposed petition (which we discussed in an earlier post), the FCC granted CAA’s request to exempt free-to-end-user package tracking notifications to consumers’ wireless phones from the TCPA’s prior express consent requirements, subject to the following seven conditions:

  • A notification must be sent, if at all, only to the telephone number for the package recipient;
  • Notifications must identify the name of the delivery company and include contact information for the delivery company;
  • Notifications must not include any telemarketing, solicitation, or advertising content;
  • Voice call and text message notifications must be concise, generally one minute or less in length for voice calls and one message of 160 characters or less in length for text messages;
  • Delivery companies shall send only one notification (whether by voice call or text message) per package, except that one additional notification may be sent to a consumer for each of the following two attempts to obtain the recipient’s signature when the signatory was not available to sign for the package on the previous delivery attempt;
  • Delivery companies relying on this exemption must offer parties the ability to opt out of receiving future delivery notification calls and messages and must honor the opt-out requests within a reasonable time from the date such request is made, not to exceed thirty days; and,
  • Each notification must include information on how to opt out of future delivery notifications; voice call notifications that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make an opt-out request prior to terminating the call; voice call notifications that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future package delivery notifications; text notifications must include the ability for the recipient to opt out by replying “STOP.” (Source: CAA Order.)

Although other petitions remain pending, it is encouraging to see the FCC taking some initial steps to clarify the applicability of the TCPA in certain contexts.

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