FCC REITERATES ITS POSITION THAT ROBOTEXTS ARE SUBJECT TO TCPA

By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond

On November 18, 2016, the Federal Communications Commission’s Enforcement Bureau (“Bureau”) released an Enforcement Advisory clarifying the TCPA’s limits on the use of autodialed text messages, known as “robotexts.” The Bureau confirmed that its rules restricting the use of automatic telephone dialing systems include those that deliver texts in addition to those that place calls.  The Bureau also clarified the applicable rules regarding consent, texts to reassigned wireless numbers, advertising texts, and enforcement.

Consistent with prior FCC guidance, the Bureau confirmed that the TCPA prohibits autodialed text messages, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device unless the robotexts fall into one of three exceptions: (1) texts made for emergency purposes; (2) texts that are free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) texts made solely to collect debts “owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii).  The Bureau confirmed that text messages sent through texting apps, “Internet-to-phone” text messaging, and similar technology meet the statutory definition of an autodialer, and therefore fall within these restrictions.

Conforming with TCPA consent rules for autodialed calls (previously discussed here), the Enforcement Bureau reiterated that senders who assert that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained this consent. Robotext recipients may revoke consent at any time using any reasonable method, and once the revocation has been made the text sender may only send one immediate and final autodialed text to confirm the opt-out request. Similarly, when a sender reasonably relies on prior express consent to robotext a wireless number and does not discover that the number has been reassigned until after a robotext has been sent, the caller is not liable for the first text, even though the recipient did not provide consent. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, 30 FCC Rcd 7961, 7996, para. 85 (2015) (TCPA Omnibus Declaratory Ruling and Order).  After that initial text, senders are liable for subsequent robotexts, regardless of whether they learn of the mobile number reassignment.

The Bureau also clarified the use of robotexts to transmit advertisements to recipients. Consistent with prior guidance, autodialed texts that include or introduce an advertisement require prior express written consent, except that consent need not be in writing for certain healthcare messages and messages made by or on behalf of a tax-exempt, nonprofit organization. See 47 CFR § 64.1200(a)(2). When a recipient has provided such consent, their later opt-out request requires the sender to stop sending text advertisements. TCPA Omnibus Declaratory Ruling and Order, 30 FCC Rcd at 7996, para. 64.

Finally, the Bureau confirmed that robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18,936 per violation, and state enforcement agencies.