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FCC Requests Comments on Whether TCPA Applies to Internet-to-Text-Message Services

Posted in Class Action Trends

Last week, the FCC requested comments on four petitions for declaratory rulings relating to the Telephone Consumer Protection Act (“TCPA”), the law that launched a thousand class-action lawsuits (or at least seems that way). One petition (pdf), by Revolution Messaging, LLC, asks the FCC to classify text messages sent via the Internet as subject to the TCPA.

The TCPA provides for statutory damages to (among others) cell phone users who receive unsolicited non-emergency calls from “automatic telephone dialing systems.” The FCC has always maintained that text messages qualify as “calls” under the statute. But recent advances in technology have blurred the lines demarcating what equipment constitutes an “automatic telephone dialing system.” In its petition, Revolution Messaging observes that, by sending an e-mail to a special e-mail address, an Internet user can now cause a text message to be delivered to a cell phone. The petition goes on to note that several marketing companies have begun using this technique to send millions of text messages to consumers. The petition asks the FCC to address whether this practice is subject to the TCPA’s rules requiring either an emergency or prior express consent before such a message can be sent. Depending on what the FCC concludes, the potential for liability under the TCPA—and thus the number of new TCPA class actions—may be affected.