FCC Sets Comment Deadlines for Petition Clarifying One-Time Text Responses to Consumer-Initiated Conversations Under the TCPA

On January 22, 2014, the Consumer and Governmental Affairs Bureau of the Federal Communications Commission (FCC) released a public notice seeking comment on the Retail Industry Leaders Association’s (RILA) petition for declaratory ruling filed on December 30, 2013. Comments are due February 21, 2014, and reply comments are due March 10, 2014.

As we previously reported, RILA is requesting that the FCC clarify that the Telephone Consumer Protection Act (TCPA) and its implementing rules requiring “prior express written consent” do not apply to one-time text messages sent in response to consumer-initiated requests for text offers, which RILA characterizes as “on demand text offers.” RILA notes that under the TCPA and the FCC’s implementing regulations, it is unlawful to “initiate, or cause to be initiated” any telemarketing or solicitation call to a wireless number using any automatic telephone dialing system or prerecorded voice without the prior express written consent of the called party. RILA argues that on demand text offers are not “initiated” by the retailer. Rather, the consumer initiates the “conversation” and the retailer’s role is limited to responding to the consumer’s specific request. RILA asserts that the retailer’s responsive texts “are more akin to informational texts, which the Commission has already explicitly stated are not required to comply with the new TCPA prior express written consent rules.” A copy of RILA’s petition can be found here.

If you are interested in commenting on this petition or would like more information about its potential impact on your business, please contact Michael B. Hazzard, Ross A. Buntrock, or Adam D. Bowser.