On March 25, 2014 FCC Commissioner Michael O’Rielly published the following post on the Official FCC Blog: TCPA: It is Time to Provide Clarity. Commissioner O’Rielly stressed the need for the FCC to address TCPA petitions as soon as possible, including issues surrounding:
“What it means to initiate a call, whether there is liability for calls made to reassigned phone numbers, whether consent can be obtained through intermediaries, whether consent can be inferred from consumer behavior or social norms, whether devices including smartphones could be considered automatic dialing systems, and what types of faxes are actually unsolicited.”
Consistent with that goal, the FCC issued two declaratory rulings on March 27, 2014. In the ruling related to GroupMe, the FCC ruled that a consumer’s prior express consent may be obtained through and conveyed by an intermediary. In the Cargo Airline Association ruling, the FCC exempted from the TCPA certain calls by package delivery companies.
GroupMe Declaratory Ruling:
The first declaratory ruling responded to a petition filed by GroupMe, Inc. There, the FCC clarified that a consumer’s prior express consent may be obtained through and conveyed by an intermediary. GroupMe provides a free, group text messaging service for groups of up to 50 members. Users who wish to create a group must agree to GroupMe’s Terms of Service, which require the group creator to represent that each individual added to the group has consented to be added and to receive text messages. After registration, the group creator provides GroupMe with the wireless telephone numbers of the group members. GroupMe then sends up to four text messages to each group member: (1) informing each member of information about the group creator; (2) names of the individuals who comprise the group; (3) unique 10-digit number GroupMe assigned to the group; (4) instructions on how to stop receiving text messages associated with the group; and (5) instructions to download the free GroupMe app.
The FCC noted that the TCPA is ambiguous regarding how consumer consent should be obtained. With respect to GroupMe’s group messaging service, the FCC held that if a consumer provides his or her wireless telephone number to a group organizer to receive calls and texts, this constitutes consent for GroupMe to send certain administrative texts that relate to the operation of the GroupMe group.
The FCC’s ruling is limited, however. In the ruling, the FCC emphasized that the TCPA still holds a caller liable for TCPA violations where no prior express consent was actually obtained. So even if GroupMe relied on an intermediary’s representation that consumer provided prior express consent, if that consumer did not in fact provide consent, GroupMe could still be liable under the TCPA. As emphasized by the FCC, a group organizer may only convey a consumer’s prior express consent; that organizer may not consent on behalf of a consumer.
Cargo Airline Association Declaratory Ruling:
The second declaratory ruling responding to a petition filed by the Cargo Airline Association (“CAA”), which is composed of member companies that deliver packages on behalf of companies and individuals (including FedEx and UPS). In a narrow ruling, the FCC held that certain calls made to wireless phones by package delivery companies will be exempt from the TCPA.
In essence, the CAA requested clarification in connection with calls made by package delivery companies, e.g. calls to alert wireless consumers about package deliveries. The FCC agreed to exempt such calls from the TCPA so long as the following elements are met:
- Notifications shall not be charged to the called party (viz. call will not count against the recipient’s plan minutes or texts);
- If any notification is sent, it may only be sent to the telephone number of the package recipient;
- Notifications must identify the name and contact information of the delivery company;
- Notification may not include any telemarketing, solicitation, or advertising content;
- Voice call and text message notifications must be concise;
- Delivery companies shall send only one notification 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 must offer an opt-out; opt-out requests must be honored within a reasonable time from the date of such request (no more than 30 days); and
- Each notification must include information on how to opt out of future delivery notifications.
Given Commissioner O’Rielly’s blog post, we are cautiously optimistic that the FCC will issue more rulings on the TCPA in the near future. Litigants defending TCPA actions should also consider primary jurisdiction arguments, given the FCC activity in the area. These rulings will hopefully provide more clarity and reduce litigation.