Recent TCPA Rulings Explain "Prior Express Consent" in Non-Telemarketing Contexts
MARCH 31, 2014
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MONICA S. DESAI
PAUL C. BESOZZI
DEBORAH M. LODGE
KOYULYN K. MILLER
PattonBoggs.com Client Alert: Recent TCPA Rulings Explain “Prior Express Consent” in Non-Telemarketing Contexts 1
TECHCOMM CLIENT ALERT
RECENT TCPA RULINGS EXPLAIN
“PRIOR EXPRESS CONSENT” IN
Recent rulings by the Federal Communications Commission (FCC or
Commission) on petitions involving the Telephone Consumer Protection Act
(TCPA) suggest that the FCC will take a practical position to ensure that the
TCPA does not block desired and expected communications, especially in non-
telemarketing contexts, and reflect a movement toward the “common sense”
approach to TCPA evaluation that several petitioners, such as the Retail Industry
Leaders Association, have urged.
The FCC’s March 27 rulings make a welcome dent in its growing TCPA docket.
Both rulings -- on petitions by Cargo Airlines Association (CAA) and GroupMe,
Inc./Skype Communications -- discuss “prior express consent” for calls to
wireless phones, as applied to package delivery notifications and a specific social
networking platform, respectively.
TCPA litigation, including class action litigation, has increased 592 percent over
the last several years, with more than 1,862 TCPA lawsuits filed in 2013 alone.
This is no doubt due to the ambiguity surrounding many TCPA issues, including
prior consent issues, combined with the TCPA’s private right of action, strict
liability, and per call/per message penalties for violations.
This backdrop, in turn, has led to an increase in petitions seeking FCC
clarification. TCPA generally prohibits calls to wireless phones made using an
automatic telephone dialing system or prerecorded messages without prior
express consent. Under a 2003 FCC decision, TCPA prohibitions also apply to
text messages, a decision that Commissioner O’Rielly questioned in his
concurring statements to these recent rulings, as he pointed out that text
messaging did not exist when the TCPA was enacted in 1991.
PattonBoggs.com Client Alert: Recent TCPA Rulings Explain “Prior Express Consent” in Non-Telemarketing Contexts 2
CARGO AIRLINES ASSOCIATION (CAA) ORDER
In the CAA Order, the FCC ruled that package delivery notifications may be made to consumers on their wireless
phones via calls or text messaging without prior express consent, so long as the consumer is not charged for the call
and the call or text does not count against any limits in a consumer’s wireless plan. Certain other conditions also
apply, including, for example, a prohibition on any advertising in conjunction with the notifications, and limitations on
the number and length of the notifications. Consumers must also have the ability to opt out of notifications. The FCC
warned that each of the required conditions must be applied to each notification in order for the new exemption to
apply. Through this ruling, the Commission exercised, for the first time, its statutory authority to exempt calls to
wireless phones that are not charged to the called party. The Commission was persuaded by the public interest
benefits of allowing such notifications, including the reduction in package theft, and the benefit to consumers of
receiving time sensitive alerts about the status of their deliveries.
GROUPME/SKYPE DECLARATORY RULING
In the GroupMe/Skype Declaratory Ruling, the FCC clarified that when consumers consent to joining a text-based
social network, the network can send non-telemarketing administrative text messages related to joining, even when
that consent is not conveyed directly by the consumer joining the group, but is instead conveyed by a third person or
intermediary. GroupMe provides a platform that allows users to organize consumer groups for texting. A group
organizer must first register with GroupMe and agree to its terms of service, which require the organizer to represent
that each listed group member has consented to participate and to receive text messages.
Once registration is complete, GroupMe sends up to four administrative text messages to each group member with
pertinent information both about the group and about how to stop receiving texts. In its petition, GroupMe
successfully argued that for these informational, non-telemarketing text messages, the Commission should allow
consent via an intermediary because the alternative would be unduly burdensome. In evaluating the GroupMe
petition, the FCC emphasized that the TCPA does not specify how consent for non-telemarketing, informational
communications to wireless phones must be obtained. Rather, a caller or sender of text messages is left to determine
the desired method for doing so. Accordingly, the FCC concluded that there is no prohibition on GroupMe obtaining
prior express consent through an intermediary, such as the group organizer. By contrast, in 2012 the Commission
ordered that telemarketing calls require prior express written consent, with precise requirements surrounding that
Importantly, the Commission found that administrative texts such as those sent by GroupMe fall into the category of
“normal business communications” and are “expected and desired” by consumers who have given their consent to
the organizer to participate in a group facilitated by GroupMe. Thus, the goals of the TCPA would not be frustrated
by allowing the organizer to convey the group members’ consent.
PattonBoggs.com Client Alert: Recent TCPA Rulings Explain “Prior Express Consent” in Non-Telemarketing Contexts 3
The FCC analogized the GroupMe scenario to its 2008 ACA Order in the debt collection context, in which the FCC
decided that “persons who knowingly release their phone numbers have in effect given their invitation or permission
to be called at the number which they have given, absent instructions to the contrary.” The FCC found that similarly,
when a consumer agrees to participate in a GroupMe group and provides a wireless number for that purpose, the
consumer also consents to be called or texted even for administrative purposes in connection with that group.
Significantly, the FCC stated that “consent to be called at a number in conjunction with a transaction extends to a
wide range of calls ‘regarding’ that transaction.” This clarification will be particularly helpful for other companies that
engage in non-telemarketing, informational communications with consumers in connection with a particular
A WARNING TO REMAIN VERY CAREFUL
While the Commission explained that it intended to “make sure the TCPA is not interpreted to inhibit
communications consumers may want and that do not implicate the harms the TCPA was designed to prevent,” it
also emphasized that where a company relies on a false assertion by an intermediary that consent was obtained, the
company will still be liable for the TCPA violation.
Thus, the Commission warned GroupMe to “make absolutely clear to group organizers that they must obtain prior consent
of each group member to receive texts.” The Commission also clarified that an intermediary can only relay consent given by
the group member--an intermediary cannot provide consent on behalf of that member--and if that consent has not in
fact been provided the message sender remains liable. As a result, we expect that social media platforms will be
seeking indemnifications from group organizers and members. Similarly, the FCC warned in the CAA Ruling that calls
“not in full conformance with the requirements” would not qualify for the new exemption, and would expose the
caller to a risk of violating the TCPA.
Also, telemarketers need to remember that the Federal Trade Commission (FTC) also regulates telemarketing calls
under the Telemarketing Sales Rule and Section 5 of the FTC Act, which prohibits “unfair or deceptive acts and
practices.” While the FTC does not have jurisdiction over some communications providers, the FTC has jurisdiction
over most telemarketers and sellers of consumer products and services.
Patton Boggs has extensive and recognized experience in advising clients on compliance with all aspects of the TCPA
and its implementing regulations and has successfully represented clients before the FCC in connection with TCPA
requirements and clarifications, as well as regarding enforcement and litigation issues. We also have deep experience in
advising clients regarding the Federal Trade Commission’s Telemarketing Sales Rule and enforcement under the FTC
Act. The firm is uniquely suited to assist clients with any questions concerning the implications of the FCC’s
decisions, or the FTC’s perspectives, for a particular business or other application. Please contact any member of the
Patton Boggs team to discuss.