FCC Says On-Demand Text Messages Do Not Violate the TCPA11 Aug, 2015 By: Linda A. Goldstein, Christine Reilly
A big win for retailers and others, the Federal Communications Commission (FCC) issued a Declaratory Ruling under the Telephone Consumer Protection Act (TCPA) on July 10 that will make it easier for companies to text consumers in response to consumer-initiated text messages.
The Retail Industry Leaders Association (RILA) had filed a petition asking the Commission to clarify application of the new “prior express written consent” requirements for advertisements and telemarketing calls that went into effect in October 2013. The new regulations require, among other things, disclosures that marketing will be done with autodialers and that consent is not conditioned on any purchase. RILA sought to exclude on-demand text messages from these requirements.
On-demand text offers are immediate one-time replies sent to consumers via text message in response to a consumer-initiated text request. For example, companies may employ a call-to-action asking the consumer to text “coupon” to a short code for an immediate store coupon (i.e., “Text COUPON to 12345 to receive $5 off your next purchase”). RILA argued that sending a one-time, on-demand text offer in response to a consumer’s specific request does not constitute “initiating a call” and is not telemarketing under the TCPA.
The FCC granted relief, albeit on slightly different grounds than requested in the petition. Specifically, the FCC declined to find that such companies do not “initiate” calls under the TCPA and instead held that on-demand texts sent by retailers as described by RILA do not constitute telemarketing. Rather, such text messages constitute “fulfillment of the consumer’s request.”
As a result, companies do not need to make the two required disclosures above to obtain consent, since the consumer’s initiating text clearly constitutes consent to receive an informational reply in fulfillment of the consumer’s request.
On-demand text messages do not violate the TCPA provided that the reply text:
- Was expressly requested by the consumer
- Is a one-time message
- Is sent immediately in response to the consumer’s specific request
- Contains only the information requested by the consumer
- Does not contain additional marketing or advertising information
Notably, the relief granted does not apply to subscription text alerts or recurring text message programs. Those programs continue to require “prior express written consent” if they constitute advertisements or telemarketing.
For many retailers, the FCC’s ruling brings much needed relief for on-demand text messaging. However, many companies – faced with uncertainty on whether and how to apply the “prior express written consent” requirements to on-demand text messages since the written consent requirements went into effect in October 2013 – have been including the two required disclosures in their call-to-actions in order to ensure compliance with the new requirements. These companies might consider keeping their current disclosures, particularly if they cannot or may not meet the conditions above. Companies engaging in on-demand text messaging might also consider not storing or immediately deleting consumer information after a one-time reply text message is sent in order to avoid accidental reuse of the data for other purposes.
Linda A. Goldstein is chair and of the Advertising, Marketing and Media division of Manatt Phelps & Phillips LLP, based in the firm’s New York office. She can be reached at firstname.lastname@example.org. Christine Reilly is a partner in the firm’s Los Angeles office and can be reached at email@example.com.