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FCC Issues Two Important TCPA Decisions

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

Carly T. Didden

Carly T. Didden,

Washington, D.C.

31 March 2014

The Federal Communications Commission (FCC) has adopted two Telephone Consumer Protection Act (TCPA) decisions that significantly impact compliance obligations for a wide range of organizations that make or facilitate voice calls or text messages to consumers.  In the first order, the Cargo Airline Association (CAA), represented by Hogan Lovells, obtained a first-of-its-kind exemption from the TCPA’s “prior express consent” restriction on autodialed and prerecorded telephone calls and text messages to wireless telephone numbers.  In a second decision granting in part a petition filed by GroupMe, Inc., the FCC clarified that a consumer’s “prior express consent” to receive autodialed text messages on his or her wireless telephone number may be obtained through and conveyed by an intermediary.  More details are discussed below.

FCC Issues Two Important TCPA Decisions

CAA Order.  The FCC granted the CAA Petition after two rounds of public comment that showed widespread support for non-telemarketing package delivery notifications.  CAA requested an exemption from the TCPA’s “prior express consent” requirement for non-telemarketing, package delivery notifications to consumers.  It offered to provide the voice and text notifications “free-to-the-end-user,” with no per-minute or per-text charge to the consumer and no reduction in the consumer’s “bucket” of minutes or text messages.  It also acknowledged that certain conditions could be adopted to protect consumers’ privacy interests.

Based on these commitments, the FCC determined that CAA’s request was in the public interest and stated that the notifications are “the types of normal, expected communications the TCPA was not designed to hinder.”  The FCC granted the exemption request – the first one of its kind – and adopted the following conditions on the free-to-end-user exemption:

1)    a notification must be sent, if at all, only to the telephone number for the package recipient;

2)    notifications must identify the name of the delivery company and include contact information for the delivery company;

3)    notifications must not include any telemarketing, solicitation, or advertising content;

4)    voice call and text message notifications must be concise, generally one minute or less in length for voice calls and one message of 160 characters or less in length for text messages;

5)    delivery companies shall send only one notification (whether by voice call or text message) per package, except that one additional notification may be sent to a consumer for each of the following two attempts to obtain the recipient’s signature when the signatory was not available to sign for the package on the previous delivery attempt;

6)    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 time from the date such request is made, not to exceed thirty days; and,

7)    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 person to make 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; text notifications must include the ability for the recipient to opt out by replying “STOP.”

GroupMe Declaratory Ruling.  GroupMe offers a group text messaging service that allows users to invite others to a specific text message group.  GroupMe sends administrative messages to group members and has been sued by parties claiming that it did not have “prior express consent” from the invitees to send text messages to them.  

The FCC clarified that a consumer’s “prior express consent” may be obtained through and conveyed by an intermediary.  However, it also clarified that parties like GroupMe remain liable for TCPA violations through both FCC enforcement and the TCPA’s private right of action if, in fact, intermediaries do not obtain “prior express consent” as required by the TCPA.  In doing so, the FCC “strongly urge[d]” GroupMe to take adequate steps to ensure full disclosure to intermediaries and to “ensure” that intermediaries do in fact obtain the requisite consent.  The burden remains on the caller if there is any dispute over whether consent was obtained.

The decision also includes some helpful language for interpreting the meaning of “prior express consent” in the non-telemarketing context.  Based on the agency’s 2008 ACA Order, the FCC concluded that a consumer’s “consent to be called at a number in conjunction with a transaction extends to a wide range of calls ‘regarding’ that transaction, even in at least some cases where the calls were made by a third party.”  This language may make it more difficult for TCPA plaintiffs that provided their wireless telephone number in the context of a transaction to argue that they did not provide “prior express consent” to receive autodialed or prerecorded telephone calls or text messages related to the transaction, whether from a party to the transaction or from a related third-party.

Hogan Lovells has a TCPA Working Group that includes 20 litigation, FCC/communications, and privacy lawyers with substantial experience in the TCPA, and we have advised and litigated on a wide variety of TCPA issues.  For more information, please visit www.hoganlovells.com/tcpa.

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

Carly T. Didden

Carly T. Didden,

Washington, D.C.

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