Advertising Law Blog

On January 11, 2016, the Federal Communications Commission (FCC) responded to a petition for a declaratory Ruling by Club Texting, Inc.  The FCC’s Order holds that text broadcasting services should be subjected to a higher degree of legal scrutiny than to facsimile broadcasters.  According to the FCC, it will be more difficult for text broadcasters to avoid liability under the Telephone Consumer Protection Act (TCPA) even if they are merely following a client’s instructions when distributing mass text messages.   

When it comes to mass fax delivery, in 2010, the FCC created a “fax broadcaster exception” which protected companies that merely sent out faxes for clients so long as the fax broadcasters did not control the content or determine the recipients of the faxes.  The fax broadcaster exception is based on the notion that a broadcaster is akin to a common carrier. It provides that someone who sends out faxes which violate the TCPA will not be liable for such violations so long as the broadcaster lacks “a high degree of involvement or actual notice of an illegal use and failure to take steps to prevent such transmissions.” Of course, the company or person that authorized the broadcaster to send out the faxes bears responsibility for any legal violations. 

The fax broadcaster exception was not novel: traditional common carriers, like railroads or package delivery services are generally not legally responsible when customers use their services for illegal purposes because the common carriers lack a real opportunity to discover or stop the illegal use.

Despite the long tradition of the common carrier exception, this week’s FCC Order declined to apply it in the context of companies that offer text messages or SMS delivery services.  Unlike fax broadcasters, the FCC determined this week that “the determination as to who is liable as the person who ‘makes’or ‘initiates’ a particular robocall (including an 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 standard to be applied to text broadcasters… is not the same standard as applies to fax broadcasters.”

Takeaway: The Order shows that the FCC continues to treat text messages exactly the same as robocalls.Marketing companies that send text messages on behalf of other companies must be proactive in ensuring that the text messages are being sent in compliance with the TCPA.