In response to two petitions, the Federal Communications Commission issued rulings addressing the boundaries of express consent under the TCPA.
In the first case, the Cargo Airline Association (a business that works with delivery companies like FedEx) asked the agency to clarify whether the statute’s prior express consent requirement for autodialed or prerecorded calls or texts applies to automated shipment notification messages sent to the cellphones of package recipients.
In an exemption under TCPA Section 227(b)(2)(C) – not a declaratory ruling – the FCC declared that package delivery companies may notify consumers through their mobile device about their packages as long as certain conditions are met.
Specifically, consumers cannot be charged for the notifications and must be given the ability to easily opt out of future messages. Further, the notifications must be “concise,” with texts of 160 characters or less and voicemails one minute or less in length. The notifications must identify the name and contact information of the delivery company and may not include any telemarketing or advertising content. And only one notification per package may be sent with one additional notification for each of the two following attempts to obtain a signature if the first delivery attempt fails.
“[W]e find that these notifications are the types of normal, expected communications the TCPA was not designed to hinder, thus further persuading us that an exemption is warranted,” the FCC wrote. “Taken as a whole, we find that these conditions simultaneously fulfill our statutory obligation to protect consumers’ privacy interest in avoiding unwanted calls while allowing package delivery companies a reasonable time in which to implement opt-out elections.”
In the second petition filed by GroupMe, the FCC said an intermediary can provide express consent for others to take part in a text messaging group. “We clarify that text-based social networks may send administrative texts confirming consumers’ interest in joining such groups without violating the TCPA because, when consumers give express consent to participate in the group, they are the types of expected and desired communications the TCPA was not designed to prohibit, even when that consent is conveyed to the text-based social network by an intermediary.”
GroupMe’s free group text messaging service allows the creation of groups of up to 50 members. A user creates a group and then adds individuals to join. GroupMe sends up to four text messages to each group member with administrative information, such as the identity of the group’s creator, details on how to download the GroupMe app, and instructions on how to opt out of the group.
The FCC noted that commenters on the petition were divided on the issue of intermediary consent, but sided with GroupMe after finding that the TCPA is ambiguous as to how a consumer’s consent to receive an autodialed or prerecorded nonemergency call should be obtained. “While the TCPA plainly requires a caller to obtain such consent, both the text of the TCPA and its legislative history are silent on the method, including by whom, that must be done,” the FCC wrote.
Given that silence, the FCC exercised its discretion to allow intermediary consent. “Congress did not expect the TCPA to be a barrier to normal, expected, and desired business communications,” the agency said. In the context of GroupMe, group organizers already have an established association with the called parties, and the FCC has received very few complaints about the business, which is already in operation.
The agency did add that it will be “vigilant” about watching for complaints about the service and that GroupMe remains liable for TCPA violations if group organizers do not obtain prior express consent from group members. Speaking more generally, the agency noted that “social networks that rely on third-party representations regarding consent remain liable for TCPA violations when a consumer’s consent was not obtained.”
To read the order in In the Matter of Cargo Airline Association, click here.
To read the declaratory ruling in In the Matter of GroupMe, click here.
Why it matters: Companies should be pleased with the FCC’s new orders, both of which adopt a real-life, commonsense approach to the TCPA’s consent requirements for non-commercial messages. Or as Commissioner Michael O’Rielly wrote in a concurring statement, the orders “will provide much needed clarity in an area where uncertainty can inhibit legitimate businesses from offering consumer-friendly applications and services, and can breed litigation. They will also directly benefit consumers by enabling them to receive package delivery notifications they want and expect, and by ensuring that they can take advantage of a service that helps connect groups of friends, families, and colleagues.”
Also noteworthy in Commissioner O’Rielly’s concurring statement is a brief observation about the TCPA’s application to text messages, which should come as pleasant surprise to companies that struggle with the new FCC consent rules for sending commercial text messages. In his statement, Commissioner O’Rielly said “[m]y only hesitation is on the applicability of the TCPA to text messages. The TCPA was enacted in 1991 – before the first text message was ever sent. I was not at the Commission when it decided that the TCPA does apply to text messages, and I may have approached it differently. It would have been better if the Commission had gone back to Congress for clear guidance on the issue.” The statement continued, “I will look for opportunities, like the ones presented here, to ensure that our rules do not stand in the way of innovation and certainty that benefits consumers and businesses alike.”