FCC: No Guaranteed TCPA Exemption for Text Broadcasters

On January 11, 2016, the Federal Communications Commission (the “FCC” or “Commission”) denied a Petition for Declaratory Ruling filed by text message marketing service provider Club Texting, Inc. (“Club Texting”), confirming that “text broadcasters” can be liable for TCPA violations.

Club Texting Platform and Petition

Club Texting describes itself as “one of the world's most powerful mass text messaging platforms.” According to the FCC, text broadcaster Club Texting operates a software platform that allows its clients to contact their target audience via text message.

In its Petition for Declaratory Ruling, Club Texting compared its service to that of a fax broadcaster and, therefore, argued that text broadcasters should be subject to the same standard as fax broadcasters with respect to liability for unsolicited text messages delivered on behalf of its clients. Under the Commission’s rules, a fax broadcaster will not be held liable for violations of the TCPA’s prohibitions against unsolicited fax advertisements 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.”

Club Texting requested clarification that liability for text broadcasters would attach only if a TCPA plaintiff or regulatory agency demonstrates a text broadcaster’s high degree of involvement in, or actual notice of, the unlawful activity and failure to take steps to prevent such transmissions.

Text Broadcaster vs. Fax Broadcaster Standard

In its Order, the FCC rejected Club Texting’s argument analogizing fax and text broadcasters. The Commission instead turned to its 2015 TCPA Declaratory Ruling and Order as the applicable standard for determining text broadcaster liability for TCPA violations.

The determination as to who is liable as the “maker” or “initiator” of an unauthorized text message broadcast on behalf of a third party requires a fact-based determination governed by a number of factors, such as:

  • which party takes the steps necessary to physically send the text message; and
  • the extent and nature of involvement by others (including the provider of the platform used to send the text messages).

Mobile Marketers: Think Before You Text

Contrary to the belief of many, as the above-mentioned FCC Order demonstrates, providers of platforms to broadcast third-party text messages are not necessarily exempt from initiator liability under the TCPA. When determining who sends or initiates an unauthorized text message from a software platform, the FCC will weigh a number of factors to determine whether the text broadcaster or the user was ultimately in control.