On November 18, 2016, the Federal Communications Commission (FCC) Enforcement Bureau issued an Advisory declaring that autodialed text messages, also known as robotexts, must comply with the requirements set forth in the Telephone Consumer Protection Act (TCPA).
The Telephone Consumer Protection Act
Congress enacted the TCPA in 1991 to address certain practices thought to be an invasion of consumer privacy. See 47 U.S.C. § 227. The TCPA and the FCC’s implementing rules prohibit: (1) making telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) making any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number without prior express consent. See 47 U.S.C § 227(b)(1)(A) & (b)(1)(B); 47 C.F.R. § 64.1200(a)(1) & (a)(3). If the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, the consent may be oral or written. See 47 C.F.R. § 64.1200(a).
On November 18, 2016, the FCC Enforcement Bureau issued an Advisory that reiterated the Commission’s position that restrictions on making autodialed calls to cellphones encompassed both voice calls and text messages and that the TCPA, therefore, applied to text messages sent to cellphones or other mobile devices using automatic dialing systems. The term, “automatic telephone dialing system,” included “any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention but does not have the present ability to do so.” FCC Enforcement Advisory, November 18, 2016, p. 1.
In its Advisory, the FCC stated that the TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, made without prior express consent, unless the calls or text messages were: “(1) made for emergency purposes; (2) free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) made solely to collect debts ‘owed to or guaranteed by the United States.’” FCC Enforcement Advisory, p. 2. Senders of robotexts have the burden of proving that they obtained prior express consent. For robotexts that include or introduce an advertisement or constitute telemarketing, prior express written consent is required except for certain health care messages and messages made by or on behalf of a tax-exempt nonprofit organization. The Advisory further clarifies that the presence of contact information in the contact list of another individual’s wireless device does not, without more, constitute consent to receive robotexts. Even where consent has been obtained, recipients of robotexts may revoke their consent at any time. When consent to receive future robotexts has been revoked, the text sender may still immediately send one final autodialed text to confirm the recipient’s opt-out request.
The FCC and state enforcement agencies may enforce robotext violation with penalties up to $18,936 per violation.
Since its 2015 Declaratory Ruling and Order asserting an expansive view of the application of the TCPA to robocalls and robotexts, the FCC has continued to file enforcement actions against advertisers and telemarketers conducting robocall and robotext campaigns. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Red 7961 (2015). Telemarketing industry members, however, have challenged the 2015 Declaratory Ruling and Order before the D.C. Circuit, arguing, among other things, that the FCC’s definition of the term, “automatic telephone dialing system,” is too broad in that it encompasses even ordinary smartphones.
While awaiting the decision of the D.C. Circuit on the challenge to the 2015 Declaratory Ruling and Order, companies that conduct advertising campaigns through autodialed calls and/or texts need to comply with existing FCC rules interpreting the TCPA. These companies not only need to obtain prior express written consent for making autodialed calls and/or sending autodialed text messages, but should also keep a record of that consent, as companies bear the burden of proving that they obtained such consent.