FCC Reminder: Robotexts are Subject to TCPA

On November 18, 2016, the Federal Communications Commission’s (“FCC”) Enforcement Bureau released an Enforcement Advisory clarifying the Telephone Consumer Protection Act (“TCPA”) limits on the use of autodialed text messages—commonly known as “robotexts.” The FCC confirmed that its rules restricting the use of automatic telephone dialing systems—“any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention”— encompass text messages as well as telephone calls. The FCC also clarified the applicable rules regarding consumer consent, advertising robotexts and enforcement.

The Advisory states that the TCPA prohibits autodialed calls or 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 calls or text messages are: (1) made for emergency purposes; (2) free to the end user and have been exempted by the [FCC], subject to conditions prescribed to protect consumer privacy rights; or (3) made solely to collect debts owed to or guaranteed by the United States.” The last exception, for government debt-collection calls, was added this summer and is under legal challenge.

The Advisory reminds those claiming to have obtained a recipient’s prior express consent that, if such consent is legally challenged, it is the caller who have the burden of proving that proper consent exists. Call recipients may revoke their consent to receive autodialed texts or calls at any time using any reasonable method, and prior express written consent is required for autodialed texts and calls  that include or introduce an advertisement (except in certain very limited circumstances). The provisions for revocation require that, even if a recipient has provided previous consent, a subsequent opt-out request requires the caller sender to stop sending advertisements.

Per the Advisory, robotext violations are subject to enforcement by the FCC, including forfeiture penalties amount to thousands of dollars per violation, even if the caller is not subject to FCC licensing. State enforcement agencies also have jurisdiction to enforce TCPA violations..

TAKEAWAY: Businesses should familiarize themselves with the latest FCC Enforcement Advisory, and be sure to obtain and document prior express consent—in written form, for robotexts and calls that include advertisements. This should be done before sending the text messages or making the autodialed calls.

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