On Thursday the FCC entered rulings on the petitions filed by GroupMe, Inc.: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-33A1.pdf and the Cargo Airline Association: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-32A1.pdf The FCC’s ruling on the petition of Group Me, Inc. for an expedited declaratory ruling and clarification on the issue of whether it could rely on its members to provide consent for “called parties” that would receive text messages as part of its group texting service. The FCC clarified that “text based social networks may send administrative texts confirming consumers’ interest in joining such groups without violating the TCPA because, when consumers given express consent to participate in the group, they are the types of expected an desired communications [the] TCPA was not designed to prohibit, even when the consent is conveyed to the text-based social network by an intermediary.” However the FCC made it clear that such networks remain liable “when a consumer’s consent was not [actually] obtained…” In supporting its ruling the FCC looked at the policies underlying the TCPA and noted “Congress did not expect the TCPA to be a barrier to normal, expected, and desired business communications.” It also looked ot he fact that GroupMe’s “group organizers” are contractually required to represent to GroupMe that the “called parties” have, in fact, consented to receive the text messages and participate in the GroupMe program. It also noted that in previous rulings it had already clarified that creditors can act as intermediaries in conveying express consent to be called about a debt to a third-party debt collector. Hence it is consistent to allow consent to be passed on to a social network through a member intermediary. The ruling emphasizes, however, that the social network remains liable in the event that consent was not actually obtained by the intermediary: “The TCPA holds a caller liable for TCPA violations even when relying upon the assertion of an intermediary that the consumer has consented to the call.” The FCC also encouraged GroupMe to make absolutely clear to its members that they must actually obtain the consent of the “called party” and that they are, in fact, making that representation to GroupMe as a condition of using its service. The ruling is focused on whether a third-party can pass on consent given by the “called party” but does not address the circumstances under which a third-party may consent for a called party. Hence, the ruling rejects as inapposite the application of Fourth Amendment principles and expressly refuses to address any issues with respect to agency, or guardianship. The FCC also issued its ruling on the petition of the Cargo Airline Association for Expedited Declaratory Ruling and Clarification on the issue of whether it can send informational text messages to package recipients regarding the status of the shipment. Although the FCC first notes that the TCPA applies to such messages, it proceeds to carve out an exemption from liability where: i) the notification is sent, if at all, only to the telephone number of the package recipient;
ii) notifications must identify the name of the delivery company and contact information for the company;
iii) notifications must not include any advertising content;
iv) messages must be concise (less than 1 minute for voicemails and 160 characters for texts);
v) only one text message per package, although a consumer may be sent up to two additional messages following unsuccessful attempts to obtain signatures when a signature is required;
vi) the delivery company must offer the consumer the ability to opt out and must honor the opt out request within 30 days;
vii) consumers must not be charged for the text message. Information on the FCC’s rulings can be obtained from Eric Troutman of the Firm’s Orange County office at ejt@severson.com