TCPA Litigation Explosion Leads to Rule Clarifications

By: Michelle Cohen

Congress enacted the Telephone Consumer Protection Act (“TCPA”) to protect consumers from unwanted telemarketing, fax marketing, and prerecorded/auto-dialed phone calls. Recently, there has been an explosion in TCPA litigation, including class action litigation. In response, several parties have asked the Federal Communications Commission (“FCC”) to clarify certain of the agency’s TCPA rules to provide relief from TCPA liability in certain enumerated circumstances. Two recent FCC rulings allow certain business communications under the TCPA.

The Cargo Airline Association (“CAA”), a trade association representing companies that deliver packages, filed a petition seeking clarification of the TCPA’s application to auto-dialed or prerecorded package delivery notification calls made to consumers’ wireless phones. The CAA asserted that the FCC should recognize the public interest in receiving time sensitive package notifications. Revised FCC rules that went into effect in October generally require that the sender of prerecorded or auto-dialed calls and text messages to mobile numbers have prior consent from the recipient to receive such calls and texts. If the calls or texts constitute telemarketing, prior express written consent is required.

The FCC granted the CAA’s request to exempt its notifications to consumers subject to certain conditions. In the order, the FCC observed that these notifications “are the types of normal, expedited communications the TCPA was not designed to hinder . . . we believe that consumers generally desire, expect, and benefit from, package delivery notifications.” The FCC order requires that the text messages must be sent only to the telephone number provided by the package recipient, and identify the name and include the contact information of the delivery company sending the message. Furthermore, the FCC’s order limits companies to sending one text message per package per delivery attempt. The notifications also cannot contain any advertising content and must provide consumers the ability and information on how to easily opt out of receiving future notifications.

In the second ruling, the FCC granted a petition by GroupMe concerning how consent is obtained. GroupMe is an app that allows users to create text message based group chats. A user who wants to create a group chat using GroupMe’s service must register with GroupMe and agree to its terms of service. The terms of service require the group creator to represent that each individual added to the group chat has consented to receive the text messages. In its petition to the FCC, GroupMe asked the FCC to clarify that consent to receive certain calls or text messages could be given through an intermediary, such as a group chat organizer.

The FCC granted GroupMe’s petition allowing for consent to be obtained through an intermediary. Interestingly, the FCC acknowledged in its order that “the TCPA is ambiguous as to how a consumer’s consent to receive an auto-dialed or prerecorded non-emergency call should be obtained.” However, the FCC stressed that this ruling does not mitigate the duty to obtain prior express consent of the called party. Further, a company can still be held liable even when relying on the assertion of an intermediary that a consumer has consented. The order states that, “[w]e further clarify that where the consumer has agreed to participate in a GroupMe group, agreed to receive associated calls and texts, and provided his or her wireless telephone number to the group organizer for that purpose, the TCPA’s prior express consent requirement is satisfied with respect to both GroupMe and the group members regarding that particular group, but only regarding that particular group.” Companies seeking to obtain consent through an intermediary should consider this potential liability when deciding if, or how to, rely on consent given by an intermediary. Companies may want to consider contractual representations and warranties and indemnifications where a third party obtains consent.

These two orders by the FCC represent positive news for businesses that utilize texts and prerecorded/auto-dialed communications. The orders eliminate some of the uncertainty surrounding compliance with the TCPA in the circumstances addressed by the FCC. While the agency has taken numerous enforcement actions against TCPA violators and promulgated strict rules, these recent rulings indicate that the FCC recognizes that there are circumstances in which strict interpretations of the TCPA and/or FCC rules do not comport with the realities of business communications. Companies should note, however, that these rulings are limited to the particular situations presented by the petitioners. Due to the enormous potential liability for violating the TCPA, companies should continue to review their policies and practices and make sure they are in compliance with all regulations before initiating any covered TCPA communications, including prerecorded and auto-dialed calls and texts to mobile phones, prerecorded telemarketing to residential lines, facsimile advertising, and live telemarketing.