FCC Grants, with Conditions, TCPA Waiver for Package Delivery Notifications; Allows Intermediary Consent for Text-Based Social Networking

The Federal Communications Commission (the Commission” or FCC”) seems to be opening the spigot a bit on its extensive backlog of Telephone Consumer Protect Act (“TCPA”) petitions. On March 27, 2014, the Commission granted, in part, two petitions for declaratory ruling from the Cargo Airline Association (the CAA Order”) and GroupMe, Inc./Skype Communications S.A.R.L. (the GroupMe Order”) seeking clarification with respect to the Commission’s TCPA rules.

In the CAA Order, the Commission granted an exemption that allows package delivery companies to alert wireless consumers about their packages, so long as the delivery company meets a set of conditions designed to protect the consumers’ privacy. These conditions include, for example, requirements that the delivery company may only send a message to the package recipient, and must disclose the identity and contact information of the delivery company within the message. Moreover, messages may not include a telemarketing solicitation or advertising content, and must offer recipients the ability to opt-out of receiving future delivery notification calls and messages.

In the GroupMe Order, the Commission clarified that text-based social networks may send administrative text messages confirming consumers’ interest in joining text message groups, without violating the TCPA, when consumers give express consent to participate in the group, even when that consent is conveyed to the social network by an intermediary (e.g., a group leader). In addition, the Commission found that the TCPA’s prior express consent requirement is satisfied with respect to both the social network and the group members where each group member has: (1) agreed to participate in a group; (2) agreed to receive associated calls and texts; and (3) provided his or her wireless phone number to the group organizer for that purpose.

These Orders, together with the Commission’s recent SoundBite Communications Order (discussed in detail here), provide much needed guidance to companies sending informational text messages to consumers’ wireless numbers. Nevertheless, the Commission’s docket remains full of petitions from companies seeking further clarification in the wake of the Commission’s 2012 TCPA Order and an explosion in TCPA class action litigation. While we don’t expect a quick resolution of all outstanding issues, the Commission’s rulings last week provide some hope that the Commission has begun to focus on its backlog of TCPA petitions.