On July 10, 2015, the FCC (News - Alert) released an omnibus order addressing 19 petitions for clarification of the Telephone Consumer Protection Act. The TCPA imposes liability for, among other things, using an automatic telephone dialing system when calling a cellular phone absent an emergency or prior express consent from the called party. 

The recent FCC order addresses a number of important issues. For example, the FCC reaffirmed that the TCPA applies to both calls and text messages, including Internet-to-phone text messages. And, equipment used to send such text messages were found to be an ATDS under the TCPA. Prior to the release of this order, there were conflicting court decisions finding that Internet-to-phone messages were subject exclusively to the CAN-SPAM Act, while other courts held that such messages are subject to both. The TCPA Order makes clear that senders of such messages cannot escape TCPA liability by sending messages as an Internet-to-phone text message rather than a traditional SMS. 

The FCC also clarified that a one-time text message sent in response to a consumer’s specific request does not constitute a TCPA violation provided that it is sent immediately and in response to a specific consumer request. Moreover, the response must only contain information requested by the consumer without any other marketing or advertising information. 

The order also contains clarification on many other topics including, among other things, the definition of what constitutes an ATDS, the party responsible for placing (and thus potentially liable for) a call under the statute, revocation of consent, and call blocking technology. TCPA litigation remains prolific due to the statutory damages available under the law, and close attention should be paid to this topic, especially for those entities undertaking customer outreach.