As we noted recently, there have been a number of new developments in the TCPA, as the FCC and courts continue to grapple with interpretation of the rules. On March 27, 2014, the FCC took steps toward addressing the backlog of petitions pending at the FCC, answering two petitions through declaratory rulings. In response to the Cargo Airline Association’s petition, the FCC created a narrow exception to the prior express consent rule for package delivery notifications. The FCC also clarified in the Group Me declaratory ruling that prior express consent could be obtained through an intermediary in the social media context when all members of the group have given prior express consent to the group organizer. The FCC emphasized that despite allowing for intermediary consent in these limited circumstances, a caller remains liable if consent was not actually obtained by the group organizer. Whether the floodgates are gradually opening for more FCC direction remains to be seen, but these rulings clearly represent progress in providing clearer guidance to businesses under the TCPA.
In addition to the FCC’s rulings, the U.S. District Court for the Northern District of California recently addressed the liability of third-party communications platform providers that do not create content or control the timing of the messages in Mendez v. C-Two Group, Inc. On April 21, 2014, the court granted defendant mobileStorm’s motion to dismiss, holding that in order to be liable it would need to be the originator or controller of the content of the text message, have “a high degree of involvement in, or have actual notice of the unlawful activity,” and “fail to take steps to prevent the text transmissions.” Please see our most recent TCPA Alert for more information about this case and the FCC’s declaratory rulings, as well as a list of select TCPA complaint filings. As the complaints demonstrate, it is also increasingly the case that claims under the TCPA are joined with other substantive allegations, such as claims under the Fair Debt Collections Practices Act, which will have the effect of compounding the risk and exposure to TCPA violations.