The FCC recently issued two important decisions granting exceptions to the Telephone Consumer Protection Act (“TCPA”) to allow calls and text messages to mobile phones without first obtaining the recipient’s consent. They likely signal that the FCC will entertain new requests for exceptions that make practical sense.
Many TCPA class action nuisance cases are currently being brought, alleging that calling parties have made calls or sent text messages to mobile phones without first having received consent. Historically, the FCC has been unwilling to craft exceptions to TCPA prior consent rules, preferring to allow the matters to play out in state and federal court.
GroupMe – Text Messages Allowed Based on Indirect Consent
The FCC concluded in the GroupMe case that a company may rely upon indirect consent under certain circumstances. This decision opens the door to other arguments that indirect consent should be excepted from TCPA rules.
GroupMe is a social media business that lets users set up groups that communicate by text message. The FCC allowed GroupMe to send text messages to newly invited users based on an existing group member initiating the process at GroupMe. The FCC said that GroupMe could rely on a representation from an existing member that the member obtained the consent of a potential new member to receive the text message.
In order to use this exception to the normal consent requirement, the FCC said that GroupMe must make it clear that a member needs to obtain consent from a potential new member before causing GroupMe to send the invitation text to that person. The FCC did not give precise, actionable guidance about how to make this requirement prominent. It will be interesting to see how this plays out in practice.
Package Delivery Notices – No Consent Needed Under Specific Conditions
In the Cargo Airline Association case involving package delivery notifications to mobile phones by voice message or text, the FCC created an exception to the TCPA requirement for prior written consent before making calls or sending texts. The FCC did not even require the vendor (e.g., who sold the item) to obtain the customer’s consent to receive a delivery notice.
Thus, this case went further than the GroupMe case. In GroupMe, an existing member is telling GroupMe that she has consent to send messages to a potential new member. In the package delivery case, the FCC imposed no requirement that the store selling an item or the delivery company obtain the customer’s consent.
The standards that the FCC applied to reach this result could be used in other situations. The FCC said that for the exception to apply, the delivery notice text messages must be free to the recipient. Voice messages need not be free to the recipient, but need to be less than one minute. Assuming these conditions are met, the FCC said it would look at the public interest, finding that customers benefit from delivery notices that can avoid having packages stolen or lost. And, the FCC said it would impose conditions on how many calls or text messages can be sent and what information is included; for example, the FCC barred any telemarketing, solicitation or advertising content.
These two decisions are important. They represent the FCC’s willingness, after many years, to act on requests for exceptions to the fairly draconian TCPA rules. In so doing, the FCC was signaling that it will be willing to consider additional exceptions that make practical sense.