FCC Clarifies that Marketing Texts are Subject to Do-Not-Call Regs: The Practical Implications
Background
In a December 2023 order, the FCC expressly concluded for the first time that marketing text messages would be subject to its Do-Not-Call regulations:
We adopt our proposal to codify the National DNC Registry's existing protections to text messages. Texters must have the consumer's prior express invitation or permission before sending a marketing text to a wireless number in the DNC Registry. The Commission previously concluded that the national database should allow for the registration of wireless telephone numbers and that such action will further the objectives of the TCPA and the Do-Not-Call Act. Our action is consistent with federal court opinions and will deter both illegal texts and make DNC enforcement easier.
In re Targeting & Eliminating Unlawful Text Messages, FCC 23-107, ❡ 26 (F.C.C. December 18, 2023).
Why did the FCC need to adopt this part of the Order?
When Congress adopted the TCPA in 1991, it directed the FCC to “initiate a rulemaking proceeding concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.” 47 U.S.C. 227(c). Following the FCC’s initial investigation following the adoption of the TCPA, it surprised many by declining to create a national do-not-call database. It was not until 2003 that the FCC chose to use its authority, in connection with authority granted to the Federal Trade Commission, to create the national Do-Not-Call registry.
Since its creation of the registry, the FCC has always permitted mobile phone users to register their phone numbers in the database. However, given the plain language of the TCPA chosen by Congress (i.e. the FCC was authorized to “protect residential telephone subscribers’”), there has been good reason to debate whether the FCC actually possessed the delegated authority from Congress to enforce any penalties against marketers for calls made to wireless telephone numbers registered in the database. For those that are textual purists, the TCPA’s statutory text and legislative history repeatedly differentiates between “residential” and “mobile” subscribers in a manner that implies that Congress’s intent in 1991 was to authorize the creation of a database that would protect against marketing calls that disrupted families and tied upon the home phone line. There is little indication that Congress intended for the database to include mobile phone numbers at that time.
In the years since creating the database, the FCC has expressed its view that the Do-Not-Call Regulations do apply to mobile phone numbers and that marketers can be held liable for making voice calls to numbers on the Do-Not-Call registry, whether they are residential or mobile numbers. However, the FCC has not clearly stated that the regulations also apply to marketing text messages. The December 2023 Order is an effort by the Commission to close the gap and discourage courts from finding that the TCPA’s damages provisions do not apply when text messages are improperly sent to mobile numbers on the Do-Not-Call registry.
What’s the practical impact of the FCC’s conclusion that marketing text messages are subject to the Do Not Call regulations?
For many companies that engage in text message marketing, the impact of the FCC’s declaration that text messages are subject to the Do-Not-Call regulations will be quite limited. This is because the FCC’s Do-Not-Call regulations also provide that a sender of text messages “will not be liable” for sending messages to a number in the registry if “it has obtained the subscriber’s prior express invitation or permission. Such permission must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.” 47 CFR 64.1200(c)(2)(ii). Most companies engaged in text message marketing send their messages through platforms that have already structured their processes to comply with the TCPA’s prior express written consent requirement and otherwise adhere to the CTIA’s Messaging Principles and Best Practices, which require this type of written consent before sending messages. Therefore, the FCC’s clarification of its rules will have no practical impact.
For those businesses, however, who are sending marketing messages without obtaining prior express written consent, such as those sending “peer-to-peer” or human initiated marketing messages or those that have taken the view that they are not subject to the TCPA following the Supreme Court’s decision in Facebook v. Duguid, this clarification creates potential risk. These businesses must now choose either to obtain prior express written consent before sending marketing messages or, in the alternative, must meet the FCC’s Do Not Call regulations which require, among other things, that numbers are scrubbed against the national Do-Not-Call registry before sending text messages.
Specifically, under the FCC’s rules, a business that does not obtain prior express written consent must meet a series of requirements:
(A) Written procedures. It has established and implemented written procedures to comply with the national do-not-call rules;
(B) Training of personnel. It has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules;
(C) Recording. It has maintained and recorded a list of telephone numbers that the seller may not contact;
(D) Accessing the national do-not-call database. It uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules, employing a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintains records documenting this process.
(E) Purchasing the national do-not-call database. It uses a process to ensure that it does not sell, rent, lease, purchase or use the national do-not-call database, or any part thereof, for any purpose except compliance with this section and any such state or federal law to prevent telephone solicitations to telephone numbers registered on the national database. It purchases access to the relevant do-not-call data from the administrator of the national database and does not participate in any arrangement to share the cost of accessing the national database, including any arrangement with telemarketers who may not divide the costs to access the national database among various client sellers.”
47 C.F.R. 64.1200(c)(2).
In sum, while the Supreme Court may have limited the application of the TCPA’s definition of “automatic telephone dialing system” through its Facebook v. Duguid decision, the FCC’s recent clarification of its Do-Not-Call requirements places great emphasis on businesses obtaining prior express written consent from consumers before engaging in text message marketing. ANy business that takes the risk of not obtaining valid written consent must ensure strict compliance with the FCC’s Do-Not-Call list regulations or face the serious potential of costly litigation.
