FCC Denies TCPA Liability Protection to Text Broadcasters

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By Lydia Beyoud

Jan. 11 — Companies that provide a platform for others to broadcast text messages and calls using Internet-to-phone technology don't have the same protections from violating the Telephone Consumer Protection Action of 1991 as fax broadcasters do, the Federal Communications Commission said in a Jan. 11 order.

The FCC Consumer and Governmental Affairs Bureau denied a petition for declaratory ruling by Club Texting, a text broadcaster and subsidiary of Santa Monica, Calif.-based tech company CallFire Inc., seeking to have TCPA liability fall on the shoulders of users of the company's texting software—and not on the text broadcasters themselves.

The company argued that its service was merely a conduit operating platform to enable short message service (SMS) delivery.

Factual Determination

Commenters in the docket (CG 02-278) noted that such a rule would make it easier for users of text broadcasting technology to obscure their identities and possibly evade TCPA liabilities, the FCC said.

The company had specifically sought for the FCC to clarify that text broadcasters are not “senders” of text messages under Section 227(b)(1) of the TCPA, consistent with the agency's treatment of fax broadcasters.

Under the Commission's rules, a fax broadcaster will not be held liable for violations of the TCPA prohibitions against unsolicited fax ads 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.”

The FCC concluded that the determination as to who is liable as the person who “makes” or “initiates” a robocall or autodialed text message requires a fact-based determination governed by factors such as which party takes the “steps necessary to physically place” that call and the extent and nature of involvement by others, including the provider of the calling platform used to make that call, the FCC said in the order.

This determination is consistent with two decades of policy promoting consumer protections from “harassing, intrusive, and unwanted robocalls by adopting and enforcing rules that implement the protections afforded to wireless consumers under the TCPA,” the FCC said.

The Commission concluded that this protection encompassed both voice and text calls, including SMS calls and text calls made using Internet-to-phone technology or an interconnected text provider.

To contact the reporter on this story: Lydia Beyoud in Washington at lbeyoud@bna.com

To contact the editor responsible for this story: Keith Perine in Washington at kperine@bna.com