The FCC recently issued a Declaratory Ruling and Order on the Telephone Consumer Protection Act (TCPA) – and that order highlights many issues with broadcasters who use texts or outbound automated calls to the mobile devices of viewers and listeners. In fact, today the FCC released a Notice of Apparent Liability proposing to fine a travel marketing company $2,960,000 for robocalls to households on the Do-Not-Call list, without having any consent from the recipients of the calls. Certain practices of broadcasters could arguably come under TCPA prohibitions. Thus, Josh Bercu, an attorney in my firm, has prepared the following warning for broadcasters about their potential liability under the TCPA.
Last month, the FCC released a Declaratory Ruling and Order addressing 21 separate requests for clarification and other action regarding the TCPA, a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic. Because violations of the TCPA can result in civil liability of $500 to $1500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act. While the recent Order provided some specific relief in limited circumstances to businesses, it leaves many well-intentioned companies, including broadcasters, at risk as they try to contact their viewers and listeners. Below we address some commonly asked questions about how the TCPA may apply to broadcasters.
The TCPA Applies to Text Messages as well as Phone Calls. The TCPA applies to both telemarketing and non-telemarketing calls and text messages. The TCPA and FCC rules require that callers obtain prior express written consent to make a telemarketing call using an “autodialer” or prerecorded message. The TCPA and FCC rules also require prior express consent (oral or written) for all non-telemarketing calls (and text messages) made to wireless numbers using an “autodialer” or prerecorded message. (Non-telemarketing calls using an “autodialer” or prerecorded message to residential lines, e.g. calls from charities or political campaigns, do not require prior express consent.) The Order makes clear that these restrictions also apply to texts that originate with an online interaction with a website or app, and end up with a text being sent to a consumer.
An “autodialer” includes most automated response technologies. The Order reaffirms a very broad definition of “autodialer” that sweeps in most calling and text messaging equipment. According to the FCC, an “autodialer” is dialing equipment that generally has the capacity to store or produce, and dial random or sequential numbers, even if such equipment is not presently used for that purpose or requires some modification to do so. Unless you are manually dialing numbers, your dialing equipment may very well be an autodialer. Sending the same text to all the text numbers stored in a station’s database, unless done manually, is also likely the use of an “autodialer.”
The burden is on the broadcaster to establish that appropriate consent was obtained before a call or message. For non-telemarketing calls and text messages to wireless numbers, the consent can be oral or written, and there are no specific requirements for what the consent must say. In fact, in certain circumstances, a consumer providing you his or her wireless number may indicate consent. However, the burden is on the broadcaster to prove it had consent to make the call or send the message in the event a consumer complains. So, it is safest if, when you gather telephone numbers with the intent of using them for station marketing purposes, you make explicit what kinds of messages that you can send to people who have provided their numbers.
For telemarketing messages, under a new rule that became effective October 16, 2013, to obtain valid prior express written consent, at the time that you seek consent, you must disclose that that consent is not a condition of any transaction that is being done and that, by providing their consent, the consumer is acknowledging that they may receive telemarketing calls done with autodialer equipment. Again, the burden is on you to prove that you had prior express written consent if a consumer complains.
Consent that your received in the past may not still be valid. Consents obtained prior to October 16, 2013 must satisfy the disclosure requirements of the new rule. To avoid confusion, however, the Order permits telemarketers to rely on already-provided written consents that do not satisfy the new rule until October 7, 2015. If you plan to keep making and sending telemarketing calls and texts to consumers, make sure to obtain new written consents that satisfy the disclosure requirements before the deadline.
Even getting consent does not eliminate all worries. The Order sets up two challenges for even the most well-intentioned broadcaster. First, the Order concludes that consumers can revoke their consent using any reasonable method, including orally or in writing. A consumer-initiated call or direct response to a text saying that they want to be removed from a database would likely be deemed be a “reasonable method” of revoking consent, as likely would a note on a website’s “Contact Us” form. Therefore, broadcasters should establish internal mechanisms to ensure that a point person is responsible for removing viewers and listeners from the relevant database when they revoke consent.
Second, the Order clarifies that the TCPA requires the consent of the current subscriber or customary user of the phone, not the intended recipient of the call. Therefore, a broadcaster may incur liability for making calls to reassigned wireless numbers, even if the broadcaster reasonably believed that valid consent had been obtained. So if a listener or viewer changes their mobile number, and that number is reassigned to someone else, you have to remove the number from your database. The Order allows you one call before liability attaches – even if you do not reach a person, answering machine, or voicemail – to a reassigned number, if you can demonstrate that you did not have knowledge of the reassignment and that you had a reasonable basis to believe you had valid consent to make the call. After that one call, you may be liable for each additional call. The one-call forgiveness does not apply to numbers that are entered incorrectly to a dialing system, however. Therefore, if there was a typo in entering the number into the database, that needs to be corrected. Seemingly, perfection is required on the entry of numbers into any database to be used for commercial texts of autodialed calls.
Direct response texts are allowed, but only if they meet certain conditions. The Order permits a one-time text message, so long as it is (1) requested by the consumer; (2) is a one-time only message sent immediately in response to a specific consumer request; and (3) contains only the information requested by the consumer with no other marketing or advertising information. This clarification may help broadcasters send texts in response, for instance, to a listener who is trying to win a contest (where entries are made by text) to simply and immediately say whether or not the listener won. But the responsive text could not contain advertising material, nor could the number be saved for future use in a marketing campaign without the explicit consent of the listener.
Obviously, the TCPA can pose many issues for broadcasters who use text messages to contact their listeners. And, given the ambiguities in the new rules, carefully following these rules should reduce, but may not totally eliminate, any risk of legal actions. The text above identified just some of the pitfalls and issues that arise under the law and the FCC’s rules that have been adopted to implement the Act. So broadcasters need to work with counsel to develop strategies to remain in compliance with these rules – to minimize litigation risks and to avoid potentially big liability.