On March 27, 2014, the Federal Communications Commission (“FCC”) issued an Order granting package delivery companies an exemption from the Telephone Consumer Protection Act (“TCPA”) to permit them to alert wireless consumers about delivery of their packages, as long as consumers are not charged and may easily opt-out of future messages.
The Order was issued in response to a petition filed by the Cargo Airline Association (the “CAA”), which sought an expedited declaratory ruling permitting package delivery companies to alert wireless consumers about the status of their packages without violating the TCPA. While the CAA did not dispute that the TCPA’s restrictions on the use of autodialers and prerecorded messages apply to the notifications at issue, it indicated that the notifications do not contain telemarketing, solicitation, or advertising, or raise other TCPA concerns.
The Order notes that the CAA’s members already provide delivery notifications to consumers’ residential phones, which is permissible without consumer consent under the TCPA, and seek to do the same to wireless phones, either by voice or via text message. The CAA noted that package delivery notifications to residential phones include the expected date and time of delivery, the tracking number, the delivery company’s toll-free telephone number and web address for customer service, whether a signature is required, and how to opt out of future notifications. If a package can be picked up by the consumer at the delivery company’s facility, the notification will include that facility’s address and hours of operation. Upon a favorable ruling from the FCC, CAA members would provide the same information in package delivery notifications via voice or text message to wireless numbers. In its filings, the CAA indicated that its members are capable of providing notifications that are not charged to consumers by, among other options, using third-party solutions that can be used for cell phone subscribers to the four largest nationwide wireless carriers.
The FCC noted that package delivery notifications are usually welcome to consumers because they conveniently alert consumers when their packages will arrive and usually guard against package theft.
The FCC granted the CAA’s petition, in part, with conditions.
The Conditions for Each Message/Call Sent Under this TCPA Exemption
- A notification may be sent only to the telephone number for the package recipient;
- Notifications must identify the name of the delivery company and include contact information for the delivery company;
- Notifications must not include any telemarketing, solicitation, or advertising content;
- Voice call and text message notifications must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
- Delivery companies may send only one notification (whether by voice call or text message) per package, except if the package was undeliverable, in which case one additional notification may be sent for each of the following two delivery attempts;
- Delivery companies relying on this exemption must offer parties the ability to opt out of receiving future delivery notification calls and messages and must honor the opt-out requests within a reasonable period of time from the date such requests are made, not to exceed thirty days; and
- Each notification must include information on how to opt out of future delivery notifications; voice call notifications that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called party to submit an opt-out request prior to terminating the call; voice call notifications that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future package delivery notifications; and text notifications must include the ability for the recipient to opt out by replying “STOP.”
This ruling should provide considerable guidance for future non-telemarketing automated calling/text messaging activities. This is one of the first petitions that the FCC has acted upon since its most recent TCPA regulatory changes went into effect on October 16, 2013. This is a business friendly ruling and, as such, those in the telemarketing industry are optimistic that this will signal more favorable guidance to come when the FCC rules on other TCPA petitions that are currently pending for ruling.