Let’s face it: The residential phone line is on the verge of suffering the same fate as the 8-track tape. Anyone who doesn’t know what an 8-track tape is most assuredly uses a cell phone—and only a cell phone—to communicate. Email takes too long. And younger generations don’t even use the actual phone part of their cell phones.

The reality is that if you want to communicate with a very large segment of the U.S. population, you have to text. This explains why everyone is doing it. Doctors, dentists, veterinary practices, hair salons, airlines, car dealerships—businesses that make appointments—all send text reminders. Schools notify parents of school cancellations by texts. Hotels offer “virtual concierge” services entirely by texts. Retailers offer special discounts via texts. Should your business jump on the text message bandwagon? Maybe. The reward is high, but so is the risk.Continue Reading To Text or Not to Text? That Is the Question

ThinkstockPhotos-503916682-webOn July 10, 2015, the Federal Communications Commission (FCC) released its long-anticipated Declaratory Ruling and Order1 addressing twenty-one petitions and requests seeking clarification of, and relief from, various provisions of the Telephone Consumer Protection Act (TCPA) and the FCC’s implementing regulations.2 The order provides some much-needed clarity in certain areas, but commentators have generally concluded that the order has broadened the reach of the TCPA and inserted uncertainty in other areas, making calling or texting consumers an increasingly risky business practice.
Continue Reading FCC Issues Omnibus TCPA Declaratory Ruling and Order Addressing Numerous Issues Regarding Calling and Texting Consumers

During the past decade, there has been an explosion in class action litigation under the Telephone Consumer Protection Act (TCPA),1 a well-intended statute meant to address abusive telemarketing practices. As of late, many of these suits are based on calls or text messages to cell phones. The TCPA prohibits non-emergency calls (interpreted by the FCC to include text messages) to a cell phone made using an “automatic telephone dialing system” without the prior express consent of the called party.2 A perceived ambiguity in what type of equipment qualifies as an “automatic telephone dialing system” has fueled these litigation fires and has led to hundreds of cases being filed against companies that do not use telemarketing equipment but communicate with their users or facilitate their users’ communications via text message. An end to the litigation explosion in this area may be just around the corner as federal appellate courts consider the issue.
Continue Reading Appellate Courts to Address What Constitutes an “Automatic Telephone Dialing System” Under the TCPA

On March 27, 2014, the Federal Communications Commission (FCC) addressed an outstanding petition1 seeking guidance for compliance with the “prior express consent” requirement of the Telephone Consumer Protection Act (TCPA) for informational text messages.2 In a declaratory ruling, the FCC provided clarification of this requirement, and specifically addressed whether an intermediary may provide such consent. The FCC agreed with group texting service GroupMe, Inc. that, consistent with the TCPA, intermediaries may convey consent provided by others to receive informational text messages.3 However, the FCC made clear that companies ultimately remain liable where intermediaries fail to obtain the required consent. The ruling demonstrates a current trend at the FCC to allow businesses communicating with consumers by text message some flexibility while navigating the TCPA’s increasingly complex requirements.
Continue Reading FCC Clarifies That Consent May Be Provided by Intermediary for Informational Text Messages

Congress enacted the Telephone Consumer Protection Act (TCPA)1 on December 20, 1991, to address certain telephone and facsimile marketing practices that Congress found to be an invasion of consumer privacy. In general, and among other things, the TCPA prohibits unsolicited fax advertisements and automated or prerecorded calls (interpreted to include text messages) to cellular telephones or other devices for which the consumer would bear the cost of the call.2 Congress vested the Federal Communications Commission (FCC) with authority to issue regulations implementing the TCPA. Pursuant to that authority, the FCC has issued a series of detailed and complex rules and regulations interpreting and implementing the statute’s requirements.
Continue Reading TCPA Update: Recent Decisions and Significant Upcoming Change to TCPA Rules