The Federal Communications Commission recently issued an Order granting a group text messaging service’s petition requesting clarification as to how prior express consent to receive non-telemarketing cell phone texts (also affecting calls) must be obtained. In so doing, the FCC reiterated and applied several favorable statements from it prior orders and rulings.
A copy of the Order is available at:
GroupMe provides a group text messaging service through its app, which allows free group texting for up to 50 people. GroupMe users must agree to its terms of service, which require representations that each individual added to the group has consented to be added and to receive text messages. GroupMe then sends confirmation text messages to each group member, including specific information about how to use the group texting service. The recipient does not have a prior relationship with GroupMe, and do not have to consent in advance to receive the confirmation or other text messages. Thus, GroupMe relies on its users to attest that the recipient has consented to receiving the messages.
In grating GroupMe’s petition, the FCC stated:
We clarify that text-based social networks may send administrative texts confirming consumers’ interest in joining such groups without violating the TCPA because, when consumers give express consent to participate in the group, they are the types of expected and desired communications TCPA was not designed to prohibit, even when that consent is conveyed to the text-based social network by an intermediary. To ensure that the TCPA’s consumer protection goals are not circumvented, we emphasize that social networks that rely on third-party representations regarding consent remain liable for TCPA violations when a consumer’s consent was not obtained.
The FCC also noted that “we find that the TCPA is ambiguous as to how a consumer’s consent to receive an autodialed or prerecorded non-emergency call should be obtained. While the TCPA plainly requires a caller to obtain such consent, both the text of the TCPA and its legislative history are silent on the method, including by whom, that must be done. Similarly, although the Commission has required written consent for telemarketing calls, neither the Commission’s implementing rules nor its orders require any specific method by which a caller must obtain such prior express consent for non-telemarketing calls to wireless phones. We conclude therefore that the TCPA does not prohibit a caller, such as GroupMe, from obtaining the consumer’s prior express consent through an intermediary, such as the organizer of a group using GroupMe’s service.”
In addition, the FCC also reiterated favorable language in its 1992 TCPA Order (Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, Report and
Order, 7 FCC Rcd 8752 (1992)), and its 2008 ACA Order (Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, Declaratory Ruling, 23 FCC Rcd 559 (2008):
The Commission stated in the 1992 TCPA Order 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.” Based on this reasoning, the Commission found in the  ACA Order that a consumer who provides his or her wireless telephone number on a credit application, absent instructions to the contrary, has given prior express consent to receive autodialed or prerecorded message calls “regarding the debt” at that number, including autodialed and prerecorded debt collection calls from a debt collector acting on behalf of the creditor. Thus, the Commission determined that a third-party debt collector could lawfully make an autodialed or prerecorded call “regarding the debt” to a wireless number that the consumer had provided to the creditor, which the creditor had then passed along to the debt collector.
. . .
Although the ACA Order did not formally address the legal question of whether consent can be obtained and conveyed via an intermediary, that Order did make clear that consent to be called at a number in conjunction with a transaction extends to a wide range of calls “regarding” that transaction, even in at least some cases where the calls were made by a third party.
The FCC also clarified that:
To the extent that the comments are intended to suggest that we should interpret the TCPA as permitting someone other than the consumer, such as someone claiming actual or apparent authority, to provide the prior express consent of the consumer, we make no such finding. GroupMe’s petition does not raise that issue. We note, however, that the TCPA specifically requires the prior express consent of the consumer and reiterate that, under our ruling today, a group organizer may only convey the consumer’s prior express consent. …To be clear, we do not foreclose the possibility that an agent or legal guardian, for example, could provide the consent of the consumer.
Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
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