The Federal Communications Commission (FCC) recently finished receiving comment on whether the commission should extend its fax broadcaster exemption under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227, to include text broadcasters. The comments were in response to a petition filed by Club Texting, a mobile marketing software company. The FCC’s ruling could impact not only text broadcasters, but also others in the mobile-marketing industry.

WHAT HAPPENED:

Club Texting filed a petition on August 25, 2009, asking the FCC to extend the fax broadcaster exemption of the TCPA to text message broadcasters (Docket No. 02-278). If the FCC adopted Club Texting’s position, a text message broadcaster would be treated much like a common carrier and would not be liable as a “sender” under the TCPA absent a “high degree of involvement” (which, under the TCPA fax section, generally means provision of the numbers to which a fax was sent and/or involvement in design of the content of the message). The petition was noticed up for public comment on the broadcaster issue on November 9, with comments due by November 30 and replies due by December 7.

Some of the responses have raised another issue. One commenter not only opposed Club Texting’s petition, but also went beyond the scope of the FCC’s request for public comment and specifically asked the FCC to “declare that use of a computer or other device to send text messages using a list of numbers or addresses, is the use of an ‘automatic telephone dialing system’ as defined by the TCPA and Commission.” This is one of the issues litigated earlier this year in Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009), where the Ninth Circuit held that text messaging was encompassed by the TCPA. Several cases testing application of the TCPA to text messages are pending, including at least three in the Northern District of Illinois.

WHAT IT MEANS:

If the FCC adopts Club Texting’s position, it would offer a passive conduit argument for any text-message marketers that might face TCPA litigation. However, although the issue was not noticed for comment, it is also possible that the FCC could adopt the position that sending text messages to a list of numbers constitutes the use of an automatic telephone dialing system. The decision in Satterfield has already led to a number of TCPA text-messaging lawsuits. If the FCC were to accept this commenter’s position, it would likely embolden other plaintiffs’ attorneys to sue other companies that are active in the field of text-message marketing.

If you believe that FCC application of the TCPA autodialer provision to text messages would impact your company, you should consider taking action. Although the comment period for the Club Texting petition has passed, you may wish to file a separate petition that properly presents the autodialer issues for public comment.