Last week, a district court declined to stay a lawsuit against Google Inc. and group-texting service Slide, Inc. alleging a violation of the Telephone Consumer Protection Act (“TCPA”).  The court found that a related, ongoing proceeding at the Federal Communications Commission relating to the scope of the definitions of “consent” and “automatic telephone dialing system” under the Act did not compel the court to stay the case.  Applying the doctrine of primary jurisdiction, the court concluded that it was as competent to determine the scope of the definitions of these terms as the FCC.

In a separate, but related proceeding, the FCC has requested public comments on the question of whether a company violates the TCPA when it sends a text message to a subscriber’s mobile device to confirm that the subscriber has opted out of receiving text messages ― a practice that is endorsed under the Mobile Marketing Association’s best practices guidelines.  This issue is also the subject of ongoing court proceedings:  there are more than a dozen lawsuits pending against companies for sending such confirmation messages.

The FCC received initial comments yesterday, including comments from industry participants, such as the Mobile Marketing Association and the CTIA―The Wireless Association, urging the Commission to find that one-time, precise opt-out confirmation text messages are not prohibited by the TCPA.  While the National Association of Consumer Advocates argued that even one-time confirmatory text messages should be understood to violate the TCPA, the Future of Privacy Forum agreed with industry commenters, stating that one-time opt-out confirmation text messages help protect individual privacy.  Reply comments are due to the FCC May 15, 2012. 

As we previously have reported, Congress also is considering the need for legislation to amend the TCPA to clarify the scope of limitations under the Act.