Steven Roosa is a Partner in our New York office
Within the course of two weeks, there have important modifications in the way that the TCPA is applied and enforced.
1. In the Matter of GroupMe Inc./Skype Communications S.A.R.L., FCC Declaratory Ruling, FCC 14-33
In this matter, GroupMe sought a declaratory ruling from the FCC that would relieve GroupMe of the obligation to obtain consent prior to sending texts messages to various end-users who had already self-selected, through a third-party, to receive text messaging. Specifically, an end-user who wants to start a group with GroupMe communicates with others, obtains their express consent to participate, and then provides the relevant cellphone numbers to GroupMe for all the participants. GroupMe then enables communications in and among the group using, in part, text messages. The question in the petition was whether an intermediary can obtain consent (in this case, the initiator of the group) that can then be relied upon by the party (GroupMe) that is sending the texts.
The FCC, in its declaratory ruling, ruled that consent can be obtained through intermediaries. However, the FCC also ruled that the first-party, in this case GroupMe, will be responsible under TCPA if the intermediary fails to obtain consent properly. The FCC also strongly urged GroupMe to make sure that the group initiators were actually aware of the need to obtain express consent, beyond simply mentioning the requirement in its Terms of Use
2. In the Matter of Cargo Airline Association, FCC Declaratory Ruling 14-32
Cargo Airline Association filed a petition seeking a declaratory ruling that its text message notifications to the recipients of delivered packages were exempt from the TCPA. The FCC granted the exemption, so long as the messages met certain requirements outlined by the FCC in its ruling, including: the length of the message; the fact that the message must be free-of-charge to the recipient; the absence of advertising; presence of an opt-out in each message; and other formalities.
Although the FCC granted the exemption to the Cargo Airline Association, the greater significance of the ruling is that it demonstrates the breadth of the FCC's interpretation of the TCPA's consent requirement, such that it sweeps in texts that contain no advertising and are free-of-charge to the end-user.
3. Osario v. State Farm Bank, 11th Cir. 2014
This case involved autodialed debt collection calls where the individual giving prior consent has provided some one else's phone number. The question in the litigation was whether the party making collection calls to the provided number can rely on the consent that was obtained. The Court of Appeals in Osario held that there can be no reliance except where the individual providing the third-party phone number is in fact the agent of the person to whom the phone number belongs. Additionally, the Court held that consent, under the TCPA, could be verbally revoked. - See more at: http://www.hklaw.com/PrivacyBlog/Three-Important-TCPA-Developments-04-10-2014/#sthash.rBSBHzlH.dpuf
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