Since 2009, companies that facilitate the delivery of text messages for marketing purposes, otherwise known as "text broadcasters," had urged the FCC to exempt them from liability under the Telephone Consumer Protection Act ("TCPA"). The TCPA was created to help consumers avoid unwanted phone calls. Violations of the TCPA for delivering unauthorized commercial text messages can carry significant statutory damages, making it an area of significant litigation and expense for text broadcasters and companies who use text messages to reach consumers.
On January 11, 2016, the FCC denied the long-pending petition filed by Club Texting, which sought to extend a liability exemption that the FCC had previously created for fax broadcasters to text broadcasters. Specifically, the FCC disagreed with Club Texting’s assertion that “text broadcasters” – anyone who transmits text messages to mobile phones on another’s behalf for a fee – should be subject to the same liability standard as those who transmit faxes for a fee under the TCPA. Fax broadcasters are not liable for their customers’ violation of the TCPA unless they exercise “a high degree of involvement in, or [has] actual notice of, the unlawful activity [of its customer] and fails to take steps to prevent” those unlawful transmissions. 47 C.F.R. 64.1200(a)(4)(vii).
In reaching its conclusion, the FCC held that the totality-of-the-circumstances test that it articulated in a June 2015 TCPA Omnibus Declaratory Ruling and Order “effectively resolves" Club Texting’s 2009 petition. That new test requires courts to consider all of the facts and circumstances surrounding who placed a given call (or text message) in determining TCPA liability, including who took the steps necessary to physically place the call, and whether another person was so involved in the call as to be deemed to have initiated it, “considering the goals and purposes of the TCPA.” Put simply, the FCC reaffirmed its finding that a “fact-based determination” is necessary to determine who is liable under the TCPA, making it all the more important for TCPA defendants to develop an adequate factual record before moving for summary judgment in TCPA cases.
For more, read the full FCC Order: In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Petition of Club Texting, Inc. for Declaratory Ruling, CG Docket No. 02-278.