On July 25, 2012, the Federal Communications Commission finally placed a March 2012 Petition addressing certain SMS issues from GroupMe, Inc. out for public comment. GroupMe has asked the FCC to clarify issues related to the Telephone Consumer Protection Act (TCPA), which would have a wide-ranging impact on the industry however they are decided.

GroupMe asks for two clarifications. First, GroupMe asks the FCC to clarify the scope of the term “capacity” in the definition of “automatic telephone dialing system” (ATDS) as used in the TCPA. Under the TCPA, use of an ATDS is generally prohibited, and ATDS is defined as any equipment which has the “capacity” to autodial random or sequential numbers. Some courts and many plaintiffs’ lawyers have taken a broad view of “capacity,” meaning even if equipment cannot presently autodial random or sequential numbers, even the potential ability to do so creates exposure to TCPA claims. GroupMe points out in its Petition that any modern piece of telecommunications equipment, even an iPhone, has the potential ability to autodial random or sequential numbers, but that cannot be the intent of the TCPA. GroupMe asks the FCC to clarify that “capacity” means equipment that could have in fact, at the time of use, autodialed random or sequential numbers without human intervention and without being technologically altered.

Second, GroupMe asks the FCC to clarify that “for non-telemarketing, informational calls or text messages to wireless numbers, which can permissibly be made using an ATDS under the TCPA with the called party's oral prior express consent, the caller can rely on a representation from an intermediary that they have obtained the requisite consent from the called party.” In other words, GroupMe is asking the FCC to clarify that a person can tell an SMS sender that their friend has given the person permission to receive texts from the SMS sender and the SMS sender does not need to obtain direct consent from the friend.

If either or both issues are clarified in the manner requested by GroupMe, companies that use SMS could potentially face fewer TCPA lawsuits because the ability to prove a violation on these issues would likely be foreclosed in civil cases seeking to challenge such practices. Any company that uses SMS should consider submitting comments on these issues.

GroupMe’s Petition is available here. The Public Notice asking for comment is available here.

Comments are due August 30, 2012, and replies are due September 10, 2012.