Last week, the FCC’s Enforcement Bureau issued an enforcement advisory reiterating its position that autodialed text messages must comply with requirements set forth in the Telephone Consumer Protection Act (TCPA). Though it is unclear what prompted this specific advisory (perhaps, the upcoming holiday season), the Enforcement Bureau issued the warning in order to promote understanding of the clear limits on the use of autodialed text messages, also known as “robotexts.”
The FCC has previously articulated in its 2015 Declaratory Ruling and Order that restrictions on making autodialed calls to cell phones encompass both voice calls and texts. The TCPA bars autodialed calls or texts to mobile devices without prior express written consent, unless they are (i) made for emergency purposes; (ii) free to the end user and have been exempted by the Commission; or (iii) made solely to collect on debts “owed to or guaranteed by the United States” (i.e., federal debt collection calls). Further, the term “automatic telephone dialing system” (i.e., “ATDS” or “autodialer”) covers any equipment that has the capacity to store or produce numbers to be dialed and dial them without human intervention, but does not need to have the present ability to do so.
Takeaway: Text message campaigns by advertisers have been the subject of FCC actions in the past few months. Prior express written consent may be required for autodialed texts that include or introduce an advertisement. Advertisers which engage in such campaigns should keep a record of consent provided by consumers, as companies bear the burden of proving that they obtained such consent.