FCC: No Guaranteed TCPA Exemption for Text Broadcasters

Recently, the Federal Communications
Commission (the “FCC” or “Commission”) denied
a Petition for Declaratory Ruling filed by text message marketing service
provider Club Texting, Inc. (“Club Texting”), confirming that “text
broadcasters” can be liable for TCPA violations.

Club
Texting Platform and Petition

Club Texting describes
itself as “one of the world’s most powerful mass text messaging
platforms.”  According to the FCC, text
broadcaster Club Texting operates a software platform that allows its clients
to contact their target audience via text message.  

In its Petition for
Declaratory Ruling, Club Texting compared its service to that of a fax
broadcaster and, therefore, argued that text broadcasters should be subject to
the same standard as fax broadcasters with respect to liability for unsolicited
text messages delivered on behalf of its clients.  Under the Commission’s rules, a fax
broadcaster will not be held liable for violations of the TCPA’s prohibitions
against unsolicited fax advertisements unless the broadcaster demonstrates “a
high degree of involvement in, or actual notice of, the unlawful activity and
fails to take steps to prevent such facsimile transmissions.”

Club Texting requested clarification
that liability for text broadcasters would attach only if a TCPA plaintiff or
regulatory agency demonstrates a text broadcaster’s high degree of involvement
in, or actual notice of, the unlawful activity and failure to take steps to
prevent such transmissions.

Text
Broadcaster vs. Fax Broadcaster Standard

In its Order, the FCC
rejected Club Texting’s argument analogizing fax and text broadcasters.  The Commission instead turned to its 2015
TCPA Declaratory Ruling and Order as the applicable standard for determining
text broadcaster liability for TCPA violations.

The determination as to
who is liable as the “maker” or “initiator” of an unauthorized text message broadcast
on behalf of a third party requires a fact-based determination governed by a
number of factors, such as:

·        
which party takes the steps necessary to physically
send the text message; and

·        
the extent and nature of involvement by
others (including the provider of the platform used to send the text messages).

Mobile
Marketers: Think Before You Text

Contrary to the belief of
many, as the above-mentioned FCC Order demonstrates, providers of platforms to
broadcast third-party text messages are not necessarily exempt from initiator
liability under the TCPA. When determining who sends or initiates an
unauthorized text message from a software platform, the FCC will weigh a number
of factors to determine whether the text broadcaster or the user was ultimately
in control.