On November 18, 2016, the FCC’s Enforcement Bureau issued a four-page enforcement advisory regarding the “limits of use of autodialed text messages” (so-called “robotexts”). The FCC has long held that the TCPA applies to both voice calls and text messages. As such, according to the advisory, the statute’s restrictions on autodialed calls without prior express consent of the recipient apply equally to autodialed text messages.
The advisory notes that “[t]hose contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent.” Interestingly, the advisory states that this requirement would include “text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer.” Citing back to the FCC’s 2015 Omnibus TCPA Order (currently under appeal), the advisory comments that “[t]he fact that a consumer’s wireless number is in the contact list of another person’s wireless phone does not, by itself, demonstrate consent to receive robotexts.”
The advisory also clarifies that the one-wrong-call safeguard against liability for calls to reassigned numbers adopted in the 2015 Order likewise applies to autodialed text messages.
Finally, the advisory warns that autodialed text messages sent in violation of the TCPA can result in forfeiture penalties from the FCC of up to nearly $19,000 per violation. However, a footnote in the advisory clarifies that if the person or entity that allegedly violates the TCPA does not hold an FCC license or other authorization, the FCC must first issue a warning citation before it can attempt to impose or enforce any monetary penalties.