The Federal Communications Commission (FCC) has adopted two declaratory rulings that ease some standards for complying with the Telephone Consumer Protection Act's (TCPA) consent requirements regarding informational text messages. As a result of the first ruling, companies may now rely on representations from an intermediary to whom consumers provided consent to receive such text messages. The FCC responded to the second petition by issuing its first TCPA exemption, clearing the way for package delivery companies to send text messages and prerecorded delivery notifications to consumers' mobile devices without first obtaining prior express consent.
Acknowledging that neither the TCPA nor the FCC's rules specify how a business must obtain a consumer's prior express consent to send informational calls, the FCC found [enhanced version available to lexis.com subscribers], that there was no prohibition against relying upon an intermediary to obtain or document a consumer's consent to receive informational calls and text messages to their mobile device. Allowing intermediaries to obtain and convey consent "facilitates . . . normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA." The ruling makes clear that intermediaries may only convey a consumer's consent; intermediaries cannot provide a consumer's consent.
Reliance on an intermediary's representations, however, is not a defense against an alleged TCPA violation. The FCC made clear that if the intermediary did not actually obtain the consumer's consent, the calling party is still liable for violating the TCPA.
In the second petition, the Cargo Airline Association (CAA) requested that the FCC exempt certain delivery notification calls to consumers' mobile devices from the TCPA's prior express consent requirement. CAA argued that these calls are highly beneficial to consumers, providing a convenient notice of when a package would be delivered and reducing the risk of package theft. CAA also argued that these types of calls are already being made to residential wireline consumers, and with many consumers foregoing traditional telephone service, mobile-only consumers are missing the benefit of these notices.
To mitigate any consumer harm, CAA proposed certain consumer protections for making these notification calls to consumers' mobile devices—chief among them, absolutely no cost to the consumer; one brief message per package; and the inclusion of an opt-out mechanism to stop future messages.
The FCC used its statutory authority to exempt calls that do not result in a charge for consumers from the TCPA's consent requirements. The FCC's order [enhanced version available to lexis.com subscribers], narrowly exempts package delivery calls that meet seven consumer protection requirements. In addition to being free to consumers, the messages must:
• Be sent only to the telephone number for the package recipient
• Identify the name and contact information of the delivery company
• Not include any telemarketing, solicitation, or advertising content
• Be concise
• Be limited to one notification per package, with minor exceptions
• Offer parties the ability to opt out of receiving future delivery notification calls and messages and must honor opt-out requests within 30 days
• Contain opt-out mechanism that meets certain technical standards so consumers can easily halt future messages
The FCC concluded that consumers desire and benefit from such calls, and that the TCPA was not designed to hinder "normal, expected communications." The order provides no guidance on whether the FCC would consider exempting similar types of pro-consumer communications, such as fraud alerts. However, the order provides a blueprint for how other types of pro-consumer communications could be structured to meet the FCC’s interpretations of the TCPA. Also, in granting its first exemption, the FCC has signaled that it is now open to granting exemptions regarding this aspect of the TCPA.
Note that GroupMe's original petition, filed in March 2012, also asked the FCC to clarify the types of technology that can be considered an autodialer for TCPA purposes. Observing that "many other parties" are seeking clarification as to what constitutes an autodialer, GroupMe dropped the autodialer-related request from its petition in a March 4, 2014, letter to the FCC. The FCC issued its ruling on intermediary consent just three weeks later. The definition of what is considered an autodialer will continue to be a hotly contested issue.
We continue to see a high volume of class actions alleging TCPA violations. The TCPA provides a private right of action, and statutory damages are set at $500 per violation, with treble damages for willful violations.
Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending TCPA lawsuits, the Group has counseled a number of clients on establishing autodialing and monitoring protocols.
Members of the Group who are also part of the Privacy and Data Security Group guide clients through the legal issues that arise when designing mobile text message and prerecorded and autodialed call campaigns that comply with the TCPA.
For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or email@example.com, Privacy and Data Security Practice Leader Mercedes Kelley Tunstall at 202.661.2221 or firstname.lastname@example.org, Amy S. Mushahwar at 202.661.7644 or email@example.com, or James N. Duchesne at 202.661.7636 or firstname.lastname@example.org.
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