With class action cases proliferating, the Federal Communications Commission (“FCC”) continues to receive petitions seeking guidance on the applicability of its rules to various calling or texting scenarios. In the latest example, the FCC issued a Public Notice seeking comment on a Petition for Declaratory Ruling filed by TextMe, Inc. (“TextMe”). TextMe provides a free mobile telephone app that allows users to send and receive text messages to or from personal contacts in the US, and to receive free texts and voice calls from other TextMe users. The TextMe app also allows users to make voice calls, although users do not need to purchase an outbound calling functionality to do so. In addition, a currently disabled function allows TextMe users to invite friends to use the app by sharing a message about TextMe through third-party social networks, by email, and by text message.

In its petition, TextMe requests that the Commission: (1) clarify the meaning of the term “capacity” as used in the TCPA’s definition of “automatic telephone dialing system” (“ATDS”) and (2) clarify that users of TextMe’s service, instead of TextMe itself, make or send calls or text messages for purposes of the TCPA. Alternatively, TextMe requests that the Commission clarify that third-party consent obtained through an intermediary satisfies the TCPA’s “prior express consent” requirement for calls and texts to wireless numbers.

This petition marks the latest effort from entities seeking clarification on the definition of an ATDS. And while the Commission has begun to address some of the nearly two dozen TCPA petitions remaining on its docket, it has yet to resolve many critical questions that could provide much needed clarity for telemarketers and class action plaintiffs alike. One such question is the applicability of the TCPA to text messaging. FCC Commissioner Michael O’Rielly recently expressed hesitation in applying the TCPA to text messaging, since Congress enacted the TCPA before the first text message was ever sent. The TextMe case provides the Commission with an opportunity to consider the issue anew, so interested parties may consider addressing it in their comments.

Comments are due May 7, 2014, while replies are due May 22, 2014.