FCC Sends Its Own Message with TCPA Declaratory Rulings

The Federal Communications Commission (FCC) has issued two declaratory rulings interpreting the Telephone Consumer Protection Act (TCPA) as applied to prerecorded calls and autodialed calls and texts to cell phones. While the rulings in GroupMe, Inc. and Cargo Airline Association involve social-network groups and package-delivery services, the FCC made some broad and business-friendly statements that will help clarify some of the current ambiguities noted by Commissioner O’Rielly in his recent blog, as noted here.

Notably, the FCC held the prior express consent necessary for cell-bound autodialed calls/texts and prerecorded messages can come from someone other than the subscriber, and reinvigorated its view that a consumer’s provision of a cell phone number in a transaction with a company can be deemed consent to be called at that number in “a wide range of calls ‘regarding’ that transaction.” Just as notable, the FCC expressly declined to clarify its definition of an autodialer, saving that thorny issue for another day.

The petitions filed by GroupMe and Cargo Airline Association (CAA) sought interpretations of the provisions in the TCPA and FCC rules that prohibit calling or texting cell phones via autodialer, or making prerecorded calls to them, without recipients’ prior express consent. GroupMe offers a free text messaging service for groups of up to 50 people created by one of the members or a sponsor. This results in texts by GroupMe to group members designated by the group creator, whether or not GroupMe had any prior contact with those individuals or any chance to obtain prior consent. GroupMe thus relies on group creators/sponsors as the intermediary to attest that the group members agree to be in the group and thus to receive text messages. Similarly, CAA members are package-shippers seeking to transmit autodialed calls or texts, or prerecorded messages, to notify package recipients of delivery status. Because package shippers initially have relationships with senders rather than recipients, they must rely on the sender’s assurance that the recipient consents to receiving autodialed text/calls and/or prerecorded messages on their cell phones.

The new declaratory rulings address concerns specific to these circumstances, and in most circumstances allow these calls and texts. Each of the rulings also includes general statements of TCPA law that are likely to have significant impact beyond social networking and package deliveries. For example, the FCC in GroupMe deems the TCPA ambiguous as to how consent to autodialed/prerecorded calls/texts must be obtained. This leaves the FCC with broad discretion to interpret the TCPA’s “prior express consent” requirement, which will likely apply to the many pending declaratory ruling petitions. Meanwhile, the CAA ruling is the FCC’s first exercise of its statutory authority to exempt “by rule or order,” autodialed/prerecorded calls to cell phones that are not charged to the called party.

The FCC also found in the CAA ruling that “Congress did not expect the TCPA to be a barrier to normal, expected, and desired business communications” – a standard which should be useful for other businesses. In addition, GroupMe invokes the FCC’s 1992 statement that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at [that] number.” While the 2003 omnibus updating of TCPA rules left it unclear whether the FCC still subscribed to this view, reliance on it here confirms its vitality. The GroupMe ruling also takes an expansive view of a declaratory ruling the FCC issued several years ago on automated/prerecorded telephonic debt collection. In 2008, the FCC held such calls could be made to cell phones if the party seeking to collect on a debt obtained the cell number as part of the transaction that led to the debt. GroupMe characterizes the debt collection ruling as holding that a consumer’s provision of a cell phone number in a transaction with a company can be viewed as consent to be called at that number in “a wide range of calls ‘regarding’ that transaction.” Previously, that was only implicit in the debt collection ruling; now the use of the cell phone number will be allowable for a variety of informational autodialed/prerecorded calls/texts.

These are positive developments that follow on FCC Commissioner O’Rielly’s recent blog post that clarification of the TCPA and its implementing rules is urgently needed, as we noted here.

Other specifics of the declaratory rulings are as follows:

GroupMe. Individuals using the GroupMe app can create text groups and then attest that each prospective member consents both to being in the group and receiving related texts. GroupMe sought clarification that the TCPA’s prior express consent requirement did not prevent it from sending texts to those prospective group members to provide information about the group creator, group member names, and how to download the GroupMe app, among other things.  The FCC ruled that text-based social networks may send such “administrative” texts, based on the social network’s users having given express consent to participate, even when consent is conveyed by an intermediary, which in GroupMe’s case is the group creator.

However, the FCC indicated that this allowance applies only if the intermediary already has an association with the called parties, and the social network requires (through the social network’s terms of use, for instance) that the intermediary have prior express consent from all prospective recipients of autodialed texts. The FCC stressed that an intermediary may only convey consent that has actually been provided to the intermediary, and may not consent “on behalf of” others. It also emphasized that social networks remain liable for TCPA violations if consent was, in fact, not obtained.

The GroupMe ruling also indicates that the relief sought was only for informational texts, and does not apply to marketing texts subject to a “prior express written consent” requirement rather than the more flexible “prior express consent.” In addition, GroupMe had originally asked the FCC to clarify that its system for contacting recipients is not an “autodialer” for purposes of the TCPA’s consent requirements, but appears to have narrowed its request in advocating its petition toward grant, so the FCC did not need – and expressly declined – to provide guidance on that thorny issue.

Cargo Airlines Ass’n. CAA likewise framed its request as involving delivery notifications that do not contain any marketing, solicitation or advertising. In the CAA ruling, the FCC held autodialed calls/texts and prerecorded messages may be transmitted to package recipients’ cell phones on the representation from a package sender that the recipient consents, but only under very narrow conditions. Recipients cannot be charged for the call/text, and must be able to easily opt out of future messages via a voice or keypress system, or reply text. In addition, only a single message of one minute or less in duration, or a single text of 160 characters or less, is allowed, unless a signature is required for delivery and a delivery attempt fails, in which case a second recording or text is allowed. The notifications also must include the delivery company’s name and contact information.

Taken together, the GroupMe and CAA rulings should be a boon to social networks and package-delivery services. The general principles that led to their adoption are also a positive sign for businesses faced with TCPA compliance and the threat of now-booming TCPA class action litigation.