FCC REITERATES ITS POSITION THAT ROBOTEXTS ARE SUBJECT TO TCPA
By Joseph C. Wylie II, Molly K. McGinley, and Lexi D. Bond
On November 18, 2016, the Federal Communications Commission’s Enforcement Bureau (“Bureau”) released an Enforcement Advisory clarifying the TCPA’s limits on the use of autodialed text messages, known as “robotexts.” The Bureau confirmed that its rules restricting the use of automatic telephone dialing systems include those that deliver texts in addition to those that place calls. The Bureau also clarified the applicable rules regarding consent, texts to reassigned wireless numbers, advertising texts, and enforcement.
Consistent with prior FCC guidance, the Bureau confirmed that the TCPA prohibits autodialed text messages, unless made with the prior express consent of the called party, to any telephone number assigned to a cell phone or other mobile device unless the robotexts fall into one of three exceptions: (1) texts made for emergency purposes; (2) texts that are free to the end user and have been exempted by the Commission, subject to conditions prescribed to protect consumer privacy rights; or (3) texts made solely to collect debts “owed to or guaranteed by the United States.” See 47 U.S.C. § 227(b)(1)(A)(iii). The Bureau confirmed that text messages sent through texting apps, “Internet-to-phone” text messaging, and similar technology meet the statutory definition of an autodialer, and therefore fall within these restrictions.