Continuing its run of incremental, common-sense clarifications on the reach of the Telephone Consumer Protection Act (TCPA), the Federal Communications Commission (FCC) has held that delivery notifications for which consumers are not charged do not subject the delivery company to TCPA liability.
On March 27, 2014, the FCC granted, in part, the petition for declaratory ruling filed by the Cargo Airline Association (CAA) in August 2012, ruling that certain package delivery notifications to consumers’ wireless phones are exempt from the TCPA’s restrictions. The CAA originally sought clarification on two points: (1) for calls permissibly made under the TCPA with the called party’s oral prior express consent, that the package delivery company may rely on the package sender’s representation that it has obtained the necessary consent; and (2), in the alternative, that package delivery notifications are exempt from the TCPA’s restrictions on calls by voice or text to wireless phone numbers. In a further filing, the CAA made clear that the exemption it requested in the alternative for texts applied to non-telemarketing wireless package delivery notifications sent using text messaging services for which the called party would not be charged.
“The FCC recognized consumers desire and benefit from package notifications and an increasing number of households have only wireless phones.”
The FCC granted the CAA’s exemption request, ruling that, subject to certain conditions, package delivery notifications to consumers’ wireless phones that are free to the end user are exempt from the TCPA. The FCC made clear that, in order to be free to the end user, the notification cannot count against the recipient’s plan minutes or texts. In addition, the FCC held that the package-delivery notification must also meet the following conditions:
- Be sent to the package recipient’s phone number;
- Identify and provide the delivery company’s contact information;
- Not include advertising or telemarketing content;
- Be concise, generally a minute or less for voice calls, or 160 characters or less for texts;
- Only one notification is sent per package, unless a signature is required, in which case an additional notification is allowed for each of the following two attempts to obtain the recipient’s signature; and
- Contain information about how to opt out of future notifications, with such requests being honored within 30 days.
In its ruling, the FCC recognized consumers desire and benefit from package notifications and an increasing number of households have only wireless phones. It should also be noted that because the FCC granted the exemption request, it declined to rule on whether a delivery company may rely on a package sender’s representation that it obtained the necessary consumer consent, and dismissed that issue without prejudice.
A copy of the FCC’s order can be found here.