FCC Issues Advisory on Robotexts Under the TCPA
Practical Law Legal Update w-004-6240 (Approx. 4 pages)
FCC Issues Advisory on Robotexts Under the TCPA
by Practical Law Commercial Transactions
| Published on 21 Nov 2016 • USA (National/Federal) |
The Federal Communications Commission (FCC) has issued an advisory to promote the limits of autodialed text messages (robotexts) under the Telephone Consumer Protection Act (TCPA). This advisory addresses robotext restrictions, consumer consent under the TCPA, requirements for robotext advertisements, robotexts to reassigned wireless numbers, and penalties.
On November 17, 2016 the Federal Communications Commission (FCC) issued an advisory to clarify the rules for autodialed text messages (robotexts) under the Telephone Consumer Protection Act (TCPA).
The TCPA restricts the use of automatic telephone dialing systems like those used to generate robotexts, unless:
- There is prior express consent from the end user.
- The text is sent:
- for emergency purposes;
- free to the end user and specifically exempted by the FCC (see Legal Update, FCC Rules on Exceptions to TCPA for Schools and Utilities); or
- for the sole purpose of federal debt collection. See Legal Update, FCC Issues Final Rules on TCPA Exemption for Federal Government Debt-Collection Calls.
The advisory outlines some key issues regarding prior express consent, including:
- The burden of proving prior express consent falls on the party sending the robotext.
- If the robotext includes or introduces an advertisement, the prior express consent must be in writing.
- When a caller reasonably believes it has prior express consent but the robotext is sent to a wireless number that has been reassigned, the caller is not liable for the first text but it is liable for any subsequent texts, regardless of whether it is informed of the reassignment.
For more information about prior express consent under the TCPA, see Article, Brickman v. Facebook and Obtaining Prior Express Consent Under the Telephone Consumer Protection Act (TCPA).
According to the advisory, robotext violations are subject to enforcement by both:
- The FCC, which may impose forfeiture penalties up to $18,963 per violation.
- State enforcement agencies.
For more information on the TCPA, see Practice Note, Direct Marketing and Article, Answering the Call: The FCC Issues New Telemarketing Guidance.