FCC Plays Grinch to Holidays Robotexts

Why Business Owners May Want to Reconsider Using Robotexts

Businesses hoping to boost sales this holiday season should exercise caution when sending autodialed text messages. The Federal Communications Commission (FCC) recently issued a warning that so-called “robotexts” are subject to restrictions on making autodialed calls to cell phones imposed by the Telephone Consumer Protection Act (TCPA).

TCPA Restrictions

As we have previously discussed on our Business Law News blog, the TCPA was originally enacted to address the proliferation of automated telemarketing calls to private residences. The federal statute prohibits any person from, among other things, “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to or guaranteed by the United States, or is exempted by rule or order by the [Federal Communications] Commission….”

Given the popularity of cell phones, the TCPA has been expanded to include restrictions on autodialed calls and prerecorded calls to wireless numbers. In a 2015 TCPA Omnibus Declaratory Ruling and Order, the FCC expressly clarified that text messages sent to cell phones using any automatic telephone dialing system are subject to the TCPA. As the agency explained, just as texts are a subset of “calls” under the TCPA, “robotexts” are a subset of “robocalls.” The order also described an “automatic telephone dialing system” (or “autodialer”) as any equipment that has the “capacity” to store or produce numbers to be dialed and dial them “without human intervention” but does not need to have the “present ability” to do so.

Autodialed Text Messages

The TCPA prohibits autodialed calls or text messages, as well as prerecorded calls, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device (such as a pager), unless the calls or text messages are: (1) made for emergency purposes; (2) free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) made solely to collect debts “owed to or guaranteed by the United States.”

Businesses that send autodialed text messages to mobile devices have the burden of proving that they obtained the required consent. As highlighted by the FCC, “[t]he fact that a consumer’s wireless number is in the contact list of another person’s wireless phone does not, by itself, demonstrate consent to receive robotexts.” In addition, recipients may revoke their consent at any time using any reasonable method.

In its robotext enforcement advisory, the FCC’s Enforcement Bureau expressly states that it “will rigorously enforce the important consumer protections in the TCPA and our corresponding rules.” It also reminds those who initiate autodialed texts to mobile devices that violations of the TCPA can be costly, including forfeiture penalties up to $18,936 per violation.

Businesses that advertise their products and services using autodialed texts should review their procedures to ensure they comply with the TCPA. Notably, businesses should keep detailed records of consumer consents, which can help avoid costly fines should the FCC come knocking.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, Dennis Linken, at 201-806-3364.