Almost a year and a half after the Federal Communications Commission (FCC or Commission) issued a rule update to its rules and regulations implementing the Telephone Consumer Protection Act (TCPA) (2015 FCC TCPA Omnibus Ruling and Order),[1] which we discussed then here, the Commission, in a formal Enforcement Advisor (Advisory), has warned companies that use text messaging to communicate with or advertise to consumers, employees and others that “the FCC’s Enforcement Bureau will vigorously enforce the important consumer protections in the TCPA and our corresponding rules” and that it “is committed to protecting consumers from harassing, intrusive, illegal and unwanted robotexts to cell phones and other mobile devices.” It further warns that “[r]obotext violations are subject to enforcement by the FCC, including forfeiture penalties up to $18, 936 per violation.” While the FCC is required to issue a warning citation and find subsequent violations before imposing monetary penalties, the TCPA permits consumer class actions and no such opportunity to cure is required in those cases, which currently number in the thousands and frequently result in seven- and eight-figure resolutions. Accordingly, what the FCC says, and does not say, in this Advisory should be noted by companies that use text messaging.

What the Advisory highlights:

• Robotexts include texts sent by text platforms, messaging apps and tools, and Internet-to-text technology.
• Absent certain narrow exceptions (e.g., emergency notifications),[2] the TCPA prohibits the sending of robotexts (text messages sent via equipment that has the capacity to send them without human intervention even if it does not have the present ability to do so), absent express consent, which must be written if the text includes or introduces any advertisement or commercial solicitation.
• Consent may be revoked at any time by any reasonable method (i.e., STOP cannot be the sole termination method, and companies need to address other consumer notices).
• The caller (i.e., the maker or initiator of the text) has the burden of establishing consent.
• 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.
• Where a caller has the requisite consent, and reasonably relies on that consent, but the consenting recipient’s number has been reassigned to a new person, the caller will not be liable for the first text sent to the new person, but will be for subsequent texts, even if not notified of the reassignment and even if the new recipient does not object.

What the Advisory does not discuss:

• The Advisory does not detail the many technical requirements for compliant robotexts, but warns in a footnote that callers will be responsible for them and “should read the full text of the relevant portion of the TCPA and corresponding Commission rules, respectively, at 47 U.S.C. Section 227 and 47 CFR Section 64.1200, as well as FCC orders interpreting and/or applying those provisions.” (Detailed text marketing guidance materials are available from the author.)
• The Advisory does give guidance on when a company that promotes or facilitates forward-to-friend or text-to-friend tools or campaigns will be deemed responsible for ensuring that the recipient has given the requisite consent to receive the text, and for managing opt-out terminations of that consent. This is particularly disappointing given that the FCC touched on this issue in the 2015 FCC TCPA Omnibus Ruling and Order, but did not draw clear lines to establish when the friend, rather than the company promoting or facilitating the tool or campaign, is solely responsible. A more detailed discussion of this issue is available here.
• The Advisory does not discuss what would be reasonable to rely upon for ongoing consent related to a number that has been reassigned where there has been no termination of consent provided. For instance, is failure to check carriers’ lists of reassigned numbers unreasonable? Practically, since the FCC’s safe harbor is a single text to a reassigned number, companies should be obtaining and scrubbing against reassigned number lists.

The flood of class action litigation under the TCPA has already made it exceptionally risky for companies to use text communications and marketing, especially companies that do not have a solid understanding of the TCPA’s requirements and an effective compliance program to meet those obligations. That risk is so high that many text marketing vendors have moved their business from a traditional service provider business to a platform-as-a-service, where they provide tools for companies to use to send texts themselves, and require the companies to undertake most or all of the compliance obligations and risks. In-house counsel should be wary of any use of text communications or marketing by their companies, and of any assurances by clients that a knowledgeable vendor is responsible. The vendor agreements should be given particular scrutiny, and even where a vendor undertakes responsibility and provides a meaningful indemnity – which, as noted, has become quite rare – the company should still ensure that proper compliance efforts are maintained.

[1] In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 Am. Ass’n of Healthcare Admin. Mgmt. Am. Bankers Ass’n Coal. of Mobile Engagement Providers Consumer Bankers Ass’n Direct Mktg. Ass’n Paul D. S. Edwards Milton H. Fried Jr. & Richard Evans Glide Talk, Ltd. Glob. Tel*link Corp. Nat’l Ass’n of Attorneys Gen. Prof’l Ass’n for, 30 F.C.C. Rcd. 7961 (2015) (“2015 FCC TCPA Omnibus Ruling and Order”), available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-72A1.pdf.

[2] See FCC 16-99 (Aug. 11, 2016), 2016 WL 4250379 and discussion of that Order here.