On November 18, 2016, the FCC issued an enforcement advisory clarifying its position that autodialed text messages, known as “robotexts,” are subject to the TCPA. As we reported last year, the FCC issued a package of declaratory rulings expanding the TCPA’s scope in July 2015, and this enforcement advisory is the FCC’s latest attempt to clarify the expanded scope as it relates to robotexts.
The enforcement advisory makes clear that the TCPA prohibits using an autodialer—defined broadly as any equipment that has the capacity “store or produce numbers to be dialed
and dial them without human intervention”—to place robotexts to wireless numbers absent a consumer’s prior express consent. The consumer’s express prior consent is almost always necessary, with just three narrow exceptions: where the robotext is made for emergency purposes, the FCC exempts the text, or the federal government sends the robotext in connection with the collection of federal debts. The burden of proving consent is on the sender of the robotext; and if the content of the robotext includes advertising, then the sender must show that it has the consumer’s express written consent. The FCC also clarified that consumers may revoke their consent by “any reasonable method,” after which one final text may be sent to the user in order to confirm the cancellation. Finally, where a wireless number is reassigned, there is a limited safe harbor provision: the sender may send just one text message to the reassigned number without obtaining the consumer’s consent. If the sender sends a second autotext to the reassigned number, the sender may be liable under the TCPA, even if it is unaware that the number has been reassigned. Penalties for violating the robotext prohibition can be harsh, as the FCC states that it can impose penalties of up to $18,936 per violation.
Interestingly, the FCC explicitly highlights two specific circumstances which do not indicate consent—which likely derive from situations that consumers have actually encountered: (1) where the text has been sent using internet-to-phone technology; and (2) where the wireless number is in the contacts list of another user’s wireless device. Indeed, LenderLaw Watch previously reported on a similar case, in which a text sent by an internet chat-to-text system was actionable under the TCPA—though the court there ultimately concluded that the chat-to-text system was not an “autodialer” because the chat was initiated by another chat user.
It is worth noting that this enforcement advisory was issued just weeks after the D.C. Circuit heard oral argument in ACA International v. FCC (D.C. Cir. July 10, 2015), which relates to a challenge to the FCC’s July 2015 attempt to expand the TCPA’s scope. In its brief, ACA International argued: (1) that the FCC expanded the definition of “autodialer” in an unclear manner, which expands the definition of the term beyond Congress’s intent; and (2) that senders cannot reasonably rely on consumers’ consent, because the FCC’s broad interpretation of the TCPA imposes liability on senders who unwittingly text or call numbers that have been assigned to different users. The court held oral argument on October 19, 2016, and has not yet issued its opinion. LenderLaw Watch will continue to monitor TCPA developments, and bring you an update when the D.C. Circuit issues its opinion in the ACA International case.