Previous TCPA Blog posts have noted that the FCC has a growing backlog of petitions for rulemaking, expedited declaratory ruling, or petitions for clarification on numerous issues posed by the TCPA.  On a recent Friday, the FCC acted on two separate long pending petitions for expedited declaratory ruling. This post highlights the FCC’s ruling on the petition filed by GroupMe, Inc./Skype Communications S.A.R.L. (“GroupMe”) As described in its petition, GroupMe is a text-based social network that operates by “enabling users to send user-initiated, real-time, non-commercial text messages and to participate in conference calls among user-created groups.” In other words, “GroupMe groups are the text-message equivalent of email list servers and newsgroups.” In its GroupMe Declaratory Ruling, the FCC clarified that, under appropriate conditions, a consumer’s prior express consent to be texted in this manner may be obtained through, and conveyed by, an intermediary. Based on the FCC’s determinations, text-based social networks will now have the ability to send administrative texts confirming consumers’ interest in joining such groups without violating the TCPA so long as the party to be texted has given express consent to participate in the group—even when that consent was not obtained directly, but rather conveyed to the social network by an intermediary. The intermediary cannot, however, provide consent on behalf of the to-be texted party.
The ruling makes plain that reliance on third-party representations that consent was obtained is not without risk – social network operators and similarly situated parties will remain liable for TCPA violations when a consumer’s consent in fact was not properly obtained or was merely assumed. And “where the consumer has agreed to participate in a GroupMe group, and thus provided his or her wireless telephone number to the group organizer for the purpose of receiving the associated calls and texts, 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.” The ruling also does not cut off fact based inquiries about which entity was given consent for what purpose, the sort of situation that can arise in cases where many parties may be involved in selling service bundles, or where a third party intermediary cannot itself establish the source of consent that may or may not have been given for its contact. Thus, the ruling should be narrowly interpreted and applied, as it may not provide as much comfort as it might initially appear.
GroupMe’s original petition also had sought clarification regarding the meaning of the term “automatic telephone dialing system” (ATDS), as used in 47 U.S.C. § 227(a)(1). Based on what the FCC characterized as a subsequent “narrowed request,” the FCC dismissed that portion of GroupMe’s petition without prejudice, leaving the clarification of what might constitute an ATDS for another day.
The ruling provides slightly more clarity for some business operations, but caution is still the watchword when relying upon customer consent obtained and conveyed by an intermediary, as there is still the potential for liability for misplaced reliance.