The Federal Communications Commission (“FCC”) recently issued a declaratory ruling examining whether certain peer-to-peer messaging platforms constitute an autodialer for purposes of the Telephone Consumer Protection Act (“TCPA”). Given the growing popularity of the communications technology, the implications of the ruling are likely to be significant.
What are the implications of the FCC’s autodialer ruling?
The petition to which the FCC responded described peer-to-peer messaging platforms as technology that, by definition, require senders manually send messages one at a time. The platforms at issue afford users discretion to create the content of text messages, permit senders to use prepared content, modify that content before sending the messages, or to draft their own unique messages. Based on existing FCC guidance that the basic function of an autodialer is to dial numbers without human intervention, the FCC’s ruling states that “if a calling platform is not capable of originating a call or sending a text without a person actively and affirmatively manually dialing each one, that platform is not an autodialer.”
Importantly, the FCC further clarified that “[w]hether a certain piece of equipment or platform is an autodialer turns on whether it is capable of [producing or dialing numbers] without human intervention, not whether it can make a large number of calls in a short time.” Thus, according to the FCC, if equipment “lacks the capacity to transmit more than one message without a human manually dialing each recipient’s numbers . . . then such platform would not be an ‘autodialer’ that is subject to the TCPA.”
One final principle that the FCC sought to reiterate in the ruling was the longstanding agency policy that the act of providing one’s phone number for a particular purpose is effectively giving permission to be called at that number absent instructions to the contrary. Consequently, the FCC restated the position that even if a messaging platform did qualify as an autodialer for TCPA purposes, messages sent using that platform would not violate the TCPA if the recipient had provided consent to receive calls/texts.
Protecting Against Autodialer-Related Liability
Guidance provided by regulators on how they interpret relevant statutes, as the FCC has done with this declaratory ruling, is especially helpful to those operating in the telemarketing space. Marketers require certainty when it comes to complying with applicable telemarketing laws, rules and regulations. Notwithstanding this industry-favorable declaratory ruling, the FCC has yet to issue a conclusive interpretation as to what an autodialer is for TCPA purposes, underscoring the continued uncertainty of the telemarketing legal landscape. Until such time as the FCC does issue definitive guidance, the telemarketing regulatory environment will continue to remain unsettled. As such, it is imperative that businesses work closely with experienced counsel to review all practices and procedures prior to launching any telemarketing campaign.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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