TCPA Rulings. The following FCC rulings cover text messaging under the TCPA: Nonadvertising Voice Calls and Text Messages to Wireless Numbers. On March 27, 2014, the FCC issued two rulings under TCPA clarifying that in certain circumstances, a sender may rely on third-party intermediaries to obtain consumers’ consent to receive administrative text messages and prerecorded phone calls on their cell phones, and exempting package delivery service messages from certain TCPA requirements where specified conditions are met. The FCC also clarified that text-based social networks may rely on consumers’ consent obtained and conveyed by an intermediary to send administrative text messages related to the service. [See In re Cargo Airline Assoc. , CG No. 02-278, FCC 14-32 (Mar. 27, 2014) and In re GroupMe, Inc. , CG No. 02-278, FCC 14-33 (Mar. 27, 2014)]. In these rulings the FCC further confirmed that: 1) a caller is obligated to obtain express consent, and that the caller may be liable for TCPA violations even when relying on an intermediary’s assertions; 2) by agreeing to participate in a social media service such as GroupMe, and providing a wireless phone number to do so, a consumer consents to receive administrative texts only for that specific group service; 3) an intermediary may only convey a consumer’s consent. The intermediary cannot consent on a consumer’s behalf. TCPA Penalties Steep. With violations from $500 to $1,500 per text message, and private lawyers able to bring actions, these lawsuits are likely to grow. Dish Network was ordered to pay $341 million in two separate federal court actions related to TCPA violations committed by its marketing service providers. Therefore, a business should be careful how they use text messaging as a marketing tool. TCPA Best Practice. Companies should create and maintain a tracking database for customers’ consent to receive texts and follow up immediately when receiving a request to “unsubscribe” or “opt out” of future text messages or phone calls.
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