App Developers Be Warned: FCC Enforcement Bureau Releases Advisory on "Robotexts"

By: Joe Bowser

The FCC’s Enforcement Bureau sent a roboshot across the bow today to those who send autodialed text messages, which the Bureau refers to as “robotexts.”  You won’t find the term “robotext” in the Telephone Consumer Protection Act of 1991 (“TCPA”), the FCC’s regulations implementing that law, or any FCC order interpreting or applying that law, but the Enforcement Bureau issued an Advisory today reminding “robotext” senders that they must comply with the TCPA—or face significant monetary forfeiture penalties if they do not.

The Advisory reiterates several of the principles that the FCC announced in its controversial July 2015 Omnibus Declaratory Ruling and Order, which is currently on appeal at the D.C. Circuit. A “robotext,” as Commission staff use the term, refers to a text message sent with an “automatic telephone dialing system” (or “ATDS,” a term found in the TCPA).  An ATDS, according to the FCC’s latest interpretation, includes any technology that has the “capacity to store or produce numbers to be dialed and dial them without human intervention, but the equipment does not need to have the present ability” to actually do so.  (The seemingly limitless nature of that definition is a key prong of those appealing the FCC’s July 2015 Order.)

The Enforcement Bureau's reminders include the following principles:

- "Robotexts" are prohibited unless they are sent with the prior express consent of the called party, and that consent must be in writing if the "robotext" is promotional in nature.  The only exceptions to the consent requirement are for those texts that are:

  • made for an emergency purpose;
  • free to the recipient and exempted by the Commission; or
  • made solely to collect debts "owed to or guaranteed by the United States."

- The texting party has the burden of proving that they obtained such consent.  And this includes—the Bureau emphasized—“text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer.”

- And even if you received the written consent of the person you text, if the mobile number they gave you the consent to call or text is ported to a new mobile user, you only get one "free" call or text to that number before your liability begins to accrue for texting the same number now held by a stranger, "regardless of whether or when [you] learn of the reassignment."

The Advisory also reminds us that “robotext” violations carry forfeiture penalties of up to $18,936 per violation.  Those “robotext” senders who do not already hold an FCC license or other authorization must first be issued a warning citation before those forfeitures could be assessed, but the hyper-vigilant class-action plaintiffs’ bar has no such warning requirement. 

Given the fact that the Advisory focuses on principles announced in the Summer of 2015 that were the subject of close scrutiny at the D.C. Circuit panel’s oral argument last month, app developers and those who use such apps to send text messages in substantial quantity, should take notice and ensure that their messaging practices comply, as best they can, with the Commission’s rules and orders.