Recent FCC Declaratory Rulings
On March 27, 2014, the Federal Communications Commission (“FCC”) ruled on GroupMe, Inc. Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278 (filed Mar. 1, 2012). GroupMe requested the Commission clarify whether the social networking application could rely on consent provided by an intermediary to comply with the Telephone Consumer Protection Act (“TCPA”). The TCPA prohibits non-telemarketing or advertising (i.e. political, non-profit or informational) prerecorded or text messages to cell phone lines without prior express consent.
GroupMe allows users to create and join text-based groups to communicate, much like a private chat room. It its terms of service, GroupMe requires group creators to obtain consent from other users to receive group texts. In its ruling, the FCC stated “we expect that the intermediary and autodialer user will already have some established relationship, contractual or otherwise, which lays out the responsibilities of each/provides assurance that actual consent has been obtained….” Therefore, the Commission held that a friend or other associate of a consumer may obtain and convey to GroupMe that a consumer actually provided prior express consent.
The same day, the FCC also ruled on Cargo Airline Association, Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278 (filed Aug. 17, 2012). In its petition, the CAA requested clarification that a package delivery company can rely upon a representation from a package sender that it has obtained the requisite consent from a consumer to make informational calls or texts to wireless numbers related to a package delivery in compliance with the TCPA.
The Commission found that package delivery companies could continue to alert wireless consumers about their packages as long as the consumers were not charged and could easily opt-out of future messages if they wanted. The FCC partially based the decision on the popularity of these types of services and the convenience of the messages as a way to guard against package theft.
Upcoming Comment Deadlines
The FCC has released a public notice seeking comment on TextMe, Inc.’s Petition for Expedited Declaratory Ruling and Clarification, CG Docket No. 02-278 (filed Mar. 18, 2014). The Petition requests the FCC to clarify certain parts of the TCPA. In particular, TextMe asks to clarify the meaning of the term “capacity” as used in the TCPA’s definition of automatic telephone dialing system (“ATDS”). This question has been the source of frequent contention and litigation under the TCPA.
TextMe also asks the FCC to clarify that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA. Finally, TextMe requests the FCC clarify that third party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers. Comments are due by May 7, 2014, and reply comments will be accepted until May 22, 2014.