The Federal Communications Commission (“FCC”) released a public notice on January 22, 2014 seeking comment on a petition for declaratory ruling filed by the Retail Industry Leaders Association (RILA) on December 30, 2013. (See FCC Public Notice (Jan. 22, 2014): Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Decl. Ruling Filed by RILA). In the petition, RILA requests that the FCC clarify that the Telephone Consumer Protection Act (“TCPA”) and the Commission rules do not require “prior express written consent” to one-time text messages that respond to consumer-initiated requests for text offers. (See Petition for Decl. Ruling of the RILA, CG Docket No. 02-278 (filed Dec. 30, 2013)). Comments were due February 21, 2014, and reply comments are due March 10, 2014.
RILA states in the petition that the FCC could not have intended for the consent rules to apply to one-time text message responses to consumer-initiated requests for text offers (which the RILA labels “on demand text offers,” or “on demand texts”) for three reasons. First, the consumer, not a telemarketer, initiates such on demand texts. Second, on demand texts are isolated, one-time only messages sent immediately by a telemarketer in response to a specific request by a consumer. Finally, the content of on demand texts are limited only to the specific information requested by the consumer.
These factors are important as the consent rules state that it is unlawful to “initiate, or cause to be initiated” any telemarketing/ solicitation call to a wireless number using an automatic telephone system/ prerecorded voice absent the prior express written consent of that specific consumer. Instead, RILA states that because the consumer, and not the telemarketer, initiates on demand texts, such messaging is “more akin to informational texts” which the FCC has previously concluded are not covered by the consent rules.
Furthermore, the RILA states that an FCC ruling in their favor “will also allow retailers and other companies that send on demand text messages in response to specific consumer requests for isolated offers to continue this widespread, consumer-friendly practice without fear of expensive, frivolous litigation.”
If you have any questions or concerns regarding this Advisory or if you require advice related to TCPA compliance, please do not hesitate to contact Jonathan Marashlian at jsm@commlawgroup.com or Nate Hardy at njh@commlawgroup.com.
