On July 10, 2015, the Federal Communications Commission (the “FCC” or “Commission”) released its long-awaited Declaratory Ruling and Order, which was prompted by nearly two dozen petitions and letters requesting clarifications relating to the Telephone Consumer Protection Act (the “TCPA”).

In its response to one such petition filed by the Retail Industry Leaders Association (“RILA”), the FCC determined that certain on-demand text messages are exempt from traditional regulation under the TCPA.

Should sellers and telemarketers rely on the FCC’s limited new text message exemption?

RILA’s On-Demand Text Messages

RILA is a trade association for member retailers, such as Target, Walgreens and Best Buy. According to the Commission, many of RILA’s members deliver on-demand text messages to consumers to facilitate purchases, such as advertising offers to reply with a coupon code when shoppers text a keyword (e.g., “25OFF”) to a short code.

In its filings with the FCC, RILA noted that its retailers’ on-demand text messages are delivered immediately upon request of the consumer. Additionally, the texts do not include any unrelated marketing material.   RILA argued that its members’ on-demand text messages should be exempt for TCPA purposes.

FCC Creates One-Time TCPA Exemption

The Commission agreed with RILA and commenters supporting the association’s petition, finding that “a one-time text message sent immediately after a consumer’s request for the text does not violate the TCPA and our rules.” Specifically, the FCC found that the on-demand text messages sent by RILA members were not telemarketing, but instead fulfillment of the consumers’ requests to receive the subject texts.

In reaching this decision, the FCC determined that a text message does not violate the TCPA or FCC rules if it:

  • is requested by the consumer;
  • is a one-time only message sent immediately in response to a specific consumer request; and
  • contains only the information requested by the consumer, with no other marketing or advertising information.

In support of this exemption, the Commission noted that consumers welcome such messages, which (in the case of the coupon offer described above) merely contain the discount coupons that fulfill the shoppers’ requests. By stressing that the ruling was strictly limited to one-time, on-demand text messages, the FCC did not extend the exemption to:

  • Recurring text message programs; or
  • Text messages that have not been expressly requested by the consumer.

Sellers: Maintain a Belt-and-Suspenders Approach

Although the Commission’s ruling states that a consumer’s initiating text message constitutes consent to an informational reply in fulfillment of the consumer request, sellers and telemarketers should avoid relying solely on this limited exemption. As this area of the law is nuanced (with some courts disagreeing with the FCC’s interpretation of the TCPA) and in a state of flux, businesses are strongly advised to obtain each consumer’s prior express written consent before delivering any text message that is commercial in nature, even if on-demand or one-time.