TCPA Mandates Clarified by the FCC

The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to address the telemarketing practices that were perceived to threaten consumer privacy and public safety. The TCPA restricts telemarketing calls and the use of automatic dialing systems, artificial or prerecorded voice messages, and fax machines. The Federal Communications Commission (FCC) later implemented rules designed to prohibit the use of artificial or prerecorded voice or automatic telephone dialing systems to make calls that were non-emergency, informational, or other noncommercial calls without the recipient’s “prior express consent” to cellular phones, extending to both voice calls and text messages.

Due to the increased use of mobile phones for day-to-day communications, companies increasingly want to communicate with customers through those devices. Given the ambiguity of the TCPA, companies have petitioned the FCC for clarity of the meaning and application of some provisions of the TCPA. The FCC has recently issued a declaratory ruling on the interpretation of the TCPA with regards to intermediary consent.

Intermediary Consent

This ruling determined whether an intermediary can provide the consent required to send an informational text message to the cell phone of a consumer. In this case GroupMe created an app that allowed users to create group chats of up to 50 people. Users of the GroupMe app must agree to the terms of service and affirmatively represent that every member added to the group has given their consent to be added and receive text messages from GroupMe. GroupMe then sends text messages to proposed members with information about the group, instructions on how to download and use the app, and how to opt out and stop receiving the messages.

GroupMe petitioned the FCC for clarification on whether obtaining consent through an intermediary was permitted under the TCPA. The FCC, noting that the TCPA is ambiguous when it comes to how consent can be obtained, granted the petition. It was found that direct consent of the recipient was not necessary for non-telemarketing messages, and GroupMe could rely on the warrant of the intermediary that consent was provided.

In reaching its decision, the FCC noted that it was not Congress’ expectation that the TCPA be a “barrier to normal, expected, and desired business communications.” The FCC found that to the extent the “administrative texts GroupMe sends to the group members relate to using and canceling GroupMe’s group texting service, we consider them to be normal business communications.” This interpretation is narrower than some courts who have interpreted the notion of “telemarketing” to encompass almost any communication.

The users of GroupMe must affirmatively represent that consent of third parties has been obtained. However if consent was not obtained, companies may still be subject to TCPA enforcement and private actions should they send messages to recipients who did not in fact give their consent. Therefore GroupMe was encouraged to inform group organizers that they needed to obtain prior express consent from recipients and that they were representing to GroupMe that consent had been obtained.

Additionally, the FCC found that once a person has agreed to join a GroupMe group, that person has consent to receiving messages related to the group, and a cellular telephone number has been provided for that purpose, the users consent “extends to a wide range of calls ‘regarding’ the transaction.”

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

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