TCPA Update: FCC’s Waiver of Retroactive Application of 2012 Robocall Rules Does Not Apply to All Businesses

As noted in our memo dated July 24, 2015, the Federal Communications Commission (FCC) released its much anticipated omnibus Declaratory Ruling and Order (Order) concerning more than 20 petitions and requests for clarification of the FCC’s rules implementing the Telephone Consumer Protection Act (TCPA). In the Order, the FCC confirmed that its 2012 Robocall Rules, which became effective on October 16, 2013, require that entities subject to TCPA must obtain written prior express consent (WPEC) from consumers who previously gave prior express consent under the old rules for any prerecorded call or text message that contained telemarketing or advertising content sent on or after October 16, 2013. However, to ease the effect of this ruling, the FCC provided waivers to the two trade associations that initially requested clarification regarding the retroactive application of the rules, the Direct Marketing Association (DMA), the Coalition of Mobile Engagement Providers (Coalition), and their members as of July 10, 2015. The FCC issued a retroactive waiver from the October 2013 effective date of the Robocall Rules to the release and effective date of the Order (July 10, 2015), and a second waiver from the release date of the Order through October 8, 2015. This waiver will insulate members of these trade associations from litigation and enforcement actions if previous databases or individual wireless numbers are brought into full compliance before the waiver expires on October 8, 2015.

Unfortunately, the FCC offers no guidance on acceptable ways to secure such WPEC, such as whether it is in compliance with TCPA to send a text if that is the only contact information the sender has for a consumer. Generally, sending a text message to get consent to send a text message is not sanctioned under TCPA.

The National Association of Broadcasters (NAB), which initially suggested the need for the waiver, was not named as a beneficiary of the FCC’s waiver grant. Therefore, NAB’s radio and television broadcaster members do not receive a safe harbor from litigation or enforcement of the retroactive application of the Robocall Rules unless they were also a member of the DMA or the Coalition as of the effective date of the Order. The NAB has filed a Petition for Retroactive Waiver asking the FCC to apply the waivers to its members directly. If the NAB’s request is granted, in order to obtain the relief intended by the waivers, broadcasters will be required to bring any “non-on demand messaging programs” (see below) and promotions such as text clubs or subscription alert programs into compliance with the Robocall Rules by October 8, 2015. We encourage broadcast station licensees to file comments in support of the NAB’s Petition, which should be released by the FCC for public comment shortly.

On Demand Message Exemption May Apply to Certain Radio/TV Promotions

The Order also clarified that a one-time reply message (also known as a bounce-back message) sent immediately after a consumer requests information or accepts an offer (such as a coupon) in response to a specific call-to-action is not a telemarketing or advertising message and does not violate the TCPA if the reply message fulfills the user-initiated request. Since WPEC is not required in this circumstance, the call-to-action does not have to contain the two related disclosures that the message is being sent via an automatic telephone dialing system and that consent is not conditioned on a purchase of goods and services.

We believe that the rationale in the Order also applies to text-to-win contests and other short term user-initiated broadcast promotions. There is some ambiguity with respect to this issue because the Order referenced only the request initially submitted by the Retail Industry Leaders Association and/or its retail members. The NAB also filed comments supporting this petition and requested the FCC to apply its ruling regarding one-time reply messages also to station contests, song requests, and comments and feedback from members of the public. Unfortunately, the Order did not address the NAB’s request, leaving some risk that broadcast text-to-win contests and promotions may not fall within the on-demand message exception. Unless media companies seek and receive clarification with respect to this issue, broadcasters should consider including the two WPEC disclosures in all call-to-actions and in the contest/promotion rules for text-to-win contests and promotions if the reply message may contain telemarketing or advertising content. At minimum, stations should continue to disclose that, by entering a contest or submitting a request, the consumer agrees to receive a one-time reply message in response to the user-initiated message.

Note that to qualify for the exemption under the Order, the one-time reply message must be sent immediately after receipt of the user’s specific request or acceptance, and it must contain only the information requested by the user with no other marketing or advertising information. This exemption only applies to a one-time response; it does not apply to a subscription text club or long-term promotion where multiple marketing/advertising messages and auto-replies will be sent.

If you have any questions or would like further information regarding the Declaratory Order or TCPA compliance generally, please contact S. Jenell Trigg (strigg@lermansenter.com) at 202.416.1090, Deborah Salons (dsalons@lermansenter.com) at 202.416.6768, or any other attorney in our office.