Last week, the FCC issued two TCPA rulings that shed further light on whether and under what circumstances an individual can provide “prior express consent”—or convey such consent—for another in the context of automated or prerecorded informational calls or text messages to mobile phones. One of these rulings came in response to a Petition for Declaratory Ruling filed by the Cargo Airline Association (CAA), and the other came in response to a Petition for Declaratory Ruling filed by GroupMe, Inc./Skype Communications S.A.R.L. (GroupMe). Coincidentally, the Eleventh Circuit issued its own opinion last week in Osorio v. State Farm Bank that touched on a similar issue. A summary of each can be found after the jump.
Cargo Airline Association
The TCPA and associated FCC rules require parties to obtain “prior express consent” before transmitting autodialed or prerecorded informational calls or text messages to a wireless telephone number. CAA, whose members include FedEx and UPS, filed a petition in August 2012 asking the FCC to clarify how this requirement applies to automated shipment notification messages sent to the mobile telephone numbers of package recipients.
In its petition, CAA asked the FCC to declare that, in the package delivery context, “prior express consent” can be provided by an intermediary or a third party—more specifically, that delivery companies can rely on a package sender’s representation that the package recipient consented to receiving autodialed or prerecorded delivery notification messages on his or her mobile phone. Alternatively, CAA requested an exemption from the “prior express consent” requirement for package delivery notifications. CAA later narrowed its request through ex parte communications that specified that its proposed notification messages would be free to recipients and that the FCC possesses authority under the TCPA to exempt from the “prior express consent” requirement calls or text messages that “are not charged to the called party.”
The FCC granted CAA’s narrowed request last week, though in the form of an exemption, not a declaratory ruling. Specifically, the FCC exempted package delivery notifications from the “prior express consent” requirement when the called party is not charged for them by the wireless carrier. The FCC ruled that these delivery notifications also must meet the following conditions to qualify for the exemption:
- A notification must be sent, if at all, only to the telephone number for the package recipient;
- Notifications must identify the name of the delivery company and include contact information for the delivery company;
- Notifications must not include any telemarketing, solicitation, or advertising content;
- Voice call and text message notifications must be concise, generally one minute or less in length for voice calls and one message of 160 characters or less in length for text messages;
- Delivery companies shall send only one notification (whether by voice call or text message) per package, except that one additional notification may be sent to a consumer for each of the following two attempts to obtain the recipient’s signature when the signatory was not available to sign for the package on the previous delivery attempt;
- Delivery companies relying on this exemption must offer parties the ability to opt out of receiving future delivery notification calls and messages and must honor the opt-out requests within a reasonable time from the date such request is made, not to exceed thirty days; and
- Each notification must include information on how to opt out of future delivery notifications; voice call notifications that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make an opt-out request prior to terminating the call; voice call notifications that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future package delivery notifications; text notifications must include the ability for the recipient to opt out by replying “STOP.”
Notably, the FCC declined to address the remaining question raised by the CAA in its initial petition, whether delivery companies can rely on representations from package senders that “prior express consent” has been obtained from package recipients. In light of the various conditions the FCC imposed on package recipient notification messages, the FCC exemption ruling is unlikely to have wider applicability to other forms of autodialed or prerecorded calls or text messages. A copy of the FCC’s decision is available here.
The GroupMe petition, originally filed in March 2012, also involved questions of whether and how third-party representations of consent might be acceptable under the TCPA. GroupMe, which provides a group text messaging service, asked the FCC to rule that senders of purely informational calls or text messages can rely on representations from an intermediary that the recipient’s “prior express consent” has been obtained. In the case of GroupMe’s service, the intermediary would be the creator of the text messaging group.
In its decision, the FCC ruled that in the context of “text-based social networks” such as GroupMe, “prior express consent” to receive automated text messages can be obtained through an intermediary where the messages are administrative in nature and concern the use and cancellation of the service. The FCC stated that “allowing consent to be obtained and conveyed via intermediaries in this context facilitates these normal, expected, and desired business communications in a manner that preserves the intended protections of the TCPA.” Importantly, however, the FCC emphasized that third-party representations of consent would not shield message senders from liability under the TCPA if consent to receive the messages has not actually been obtained. Nevertheless, because the question of whether an intermediary indeed secured consent would be fact based, and because the answer to this question likely would depend on each specific scenario, the FCC’s ruling can be expected to make it more difficult for plaintiffs to secure class certification rulings in this context.
The FCC’s decision on the GroupMe petition is available here.
An Eleventh Circuit opinion released last week also addressed third-party representations of consent under the TCPA. In Osorio v. State Farm Bank, a credit applicant provided State Farm with her housemate’s wireless telephone number during the application process. The applicant claimed that she provided the housemate’s number as an emergency contact; State Farm claimed that it was provided as a work phone number for the applicant. When the applicant later failed to pay the minimum balance on her credit account, 327 autodialed calls were placed to the housemate’s wireless number in an attempt to collect the balance. The housemate, Osorio, sued State Farm for TCPA violations.
The district court granted summary judgment to State Farm, finding that the applicant had provided “prior express consent” on Osorio’s behalf because the applicant had “common authority” over the telephone number (they shared the wireless plan) and the FCC has previously held that the provision of a wireless telephone number can amount to “prior express consent.” The district court reasoned that a different result would create liability for debt collectors “whenever a debtor lists a family member’s number as his own.” The Eleventh Circuit panel reversed and remanded, finding that there was a genuine factual dispute “as to whether [the applicant] acted as Osorio’s agent when she gave State Farm [Osorio’s number] as a contact number.” The panel held that the applicant “had no authority to consent in her own right to the debt collection calls to [Osorio’s number] because one can consent to a call only if one has the authority to do so, and only the subscriber (here, Osorio) can give such consent, either directly or through an authorized agent.”
By focusing on whether the applicant was authorized to consent on Osorio’s behalf, the Eleventh Circuit seemingly affirmed the limitation announced by the FCC in response to the GroupMe petition—that an intermediary’s representation regarding prior express consent will protect the sender from TCPA liability only when consent actually has been obtained. The full text of the Eleventh Circuit’s opinion is available here.