Yesterday, the Consumer and Governmental Affairs Bureau of the Federal Communications Commission (FCC) released a public notice seeking comment on TextMe, Inc.’s petition for expedited declaratory ruling and clarification filed on March 18, 2014. Comments are dueMay 7, 2014, and reply comments are due May 22, 2014.

“TextMe asks the FCC to clarify that users of TextMe’s application, and not TextMe itself, make or send calls or text messages for purposes of the TCPA.”

TextMe is requesting that the FCC clarify three aspects of the Telephone Consumer Protection Act (TCPA). First, TextMe requests that the FCC clarify that the term “capacity” as used in the statutory definition of an automatic telephone dialing system (ATDS) encompasses only equipment that, at the time of use, could in fact autodial random or sequential numbers without human intervention and without first being technologically altered. Second, TextMe asks the FCC to clarify that users of TextMe’s application, and not TextMe itself, make or send calls or text messages for purposes of the TCPA.

Finally, TextMe requests that the FCC clarify that third-party consent can be obtained through an intermediary to satisfy the TCPA’s “prior express consent” requirement for autodialed messages to wireless telephone numbers. On this last point, the FCC recently ruled that another text-messaging-application provider, GroupMe, Inc., does not need to obtain a message recipient’s consent directly, but can instead rely on intermediaries to obtain the necessary consent in response to GroupMe’s petition for expedited declaratory ruling. A summary of the FCC’s GroupMe declaratory ruling can be found here.