North Carolina: (919) 847-8632

Single Blog Title

This is a single blog caption

FCC Issues Enforcement Advisory on TCPA

///
Comment0
/
Categories,
Robert Byerts

On November 18, 2016, the Federal Communications Commission took the unusual step of issuing an ENFORCEMENT ADVISORY concerning robotexts. The FCC’s Enforcement Bureau issued this Advisory to promote understanding of the clear limits on the use of autodialed text messages, known as “robotexts.” The FCC is committed to protecting consumers from harassing, intrusive, illegal, and unwanted robotexts to cell phones and other mobile devices.

Restrictions on making autodialed calls to cell phones encompass both voice calls and texts.  Accordingly, text messages sent to cell phones using any automatic telephone dialing system are subject to the Telephone Consumer Protection Act of 1991 (“TCPA”). The term “automatic telephone dialing system” (or “autodialer”) covers 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. The TCPA places limits on autodialed calls and prerecorded- or artificial-voice calls to wireless numbers; emergency numbers; guest or patient rooms at hospitals, health care facilities, elderly homes, or similar establishments; and to any service for which the called party is charged for the call.  The FCC’s corresponding rules, 47 CFR § 64.1200, restrict the use of prerecorded-voice calls and automatic telephone dialing systems, including those that deliver robotexts. The FCC’s Enforcement Bureau will rigorously enforce the important consumer protections in the TCPA and our corresponding rules. The FCC expects this Advisory will facilitate compliance with the law and rules by those who initiate robotexts to mobile devices.

Restrictions on Robotexts. 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.”

Consumer Consent. Those contending that they have prior express consent to make robotexts to mobile devices have the burden of proving that they obtained such consent. This includes text messages from text messaging apps and Internet-to-phone text messaging where the technology meets the statutory definition of an autodialer. The 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. Further, recipients may revoke their consent at any time using any reasonable method. When a recipient of an autodialed text has revoked consent to receive future robotexts, the text sender may immediately send one final autodialed text to confirm the recipient’s opt-out request.

Advertising Robotexts. Prior express written consent is required for autodialed texts that include or introduce an advertisement except in certain limited circumstances.  Even if a person has provided such consent, however, his or her later opt-out request requires the sender to stop sending text advertisements.

Robotexts to Reassigned Wireless Numbers. The Commission has determined that when a caller reasonably relies on prior express consent to robocall or robotext a wireless number and does not discover that the number has been reassigned to another party prior to making the call or text, the caller is not liable for the first call or text going to the called party who did not provide consent.  They are, however, liable for any continued calls or text messages to a reassigned number after the initial call or text, regardless of whether or when they learn of the reassignment.

Enforcement. Robotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18,936 per violation, and state enforcement agencies.

Summary:

– On November 18, 2016, the Federal Communications Commission took the unusual step of issuing an ENFORCEMENT ADVISORY concerning robotexts.

-FCC rules restrict the use of prerecorded-voice calls and automatic telephone dialing systems, including those that deliver robotexts.

-FCC’s Enforcement Bureau will rigorously enforce the important consumer protections in the TCPA and our corresponding rules.

-FCC expects this Advisory will facilitate compliance with the law and rules by those who initiate robotexts to mobile devices.