On January 11, in Club Texting, Inc.’s Petition for a Declaratory Ruling, the Federal Communications Commission issued an Order that has the potential of increasing the scope of senders who can be liable for unwanted text messages under the Telephone Consumer Protection Act (“TCPA”).  In the process, the FCC doubled-down on its controversial July 10, 2015 Order (“2015 Order”), by ruling that the 2015 Order already decided the test for the scope of liability for unwanted texting. 

Club Texting is a company that acts as a broadcasting service for businesses that wish to send mass texts.  Club Texting does not control the content of texts or the numbers to which they are sent.  

Club Texting sought a declaratory ruling from the FCC that it is not a sender of the texts; rather, because its customers control the content and recipient numbers, the sender of the text messages is the customer.  In short, Club Texting could not be liable under the TCPA (including for statutory damages of $500 to $1,500 per illegal text).   

While not specifically ruling whether Club Texting was the sender, the FCC ruled that its 2015 Order provided the correct test, and that under that test Club Texting could be deemed the sender depending on the specific facts and circumstances.  In particular, the entity that takes “the steps necessary to physically place a” call, including a text, as well as others who are “involved sufficiently in placing a call,” can be deemed a sender. 

The net effect of the January 11, 2016 Order was a decision by the FCC to read the TCPA so as to expand, not limit, its coverage.  Expanding the reach of the TCPA was one of the primary outcomes of the 2015 Order, and the FCC continues its fundamental view that the TCPA should be read as broadly as possible in order to protect consumers from unwanted calls and texts. 

Currently, the 2015 Order is being challenged in federal court by many businesses.  The extent to which the broad reading of the TCPA by the FCC and its policies hold up is yet to be seen.