FCC Rules GroupMe Does Not Need Impossible Business Model: Message Senders Can Rely on Consent Obtained Through Intermediaries

On March 27, 2014, the Federal Communications Commission (FCC) granted, in part, the petition for expedited declaratory ruling filed by GroupMe, Inc./Skype Communications S.A.R.L. (GroupMe) on March 1, 2012, ruling that GroupMe does not need to obtain a message recipient’s consent directly, but can instead rely on intermediaries to obtain the necessary consent.

GroupMe originally petitioned the FCC to clarify two aspects of the Telephone Consumer Protection Act (TCPA) and the FCC’s implementing regulations. First, GroupMe asked the FCC to clarify that, in order to be classified as an automatic telephone dialing system (ATDS), a dialing device must have the present capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers. Second, GroupMe requested a ruling that a call recipient’s “prior express consent” can be obtained through an intermediary, such as the group organizer of a GroupMe text message group.

“The FCC reasoned that allowing intermediaries to obtain the necessary consent would not diminish the TCPA’s goal of protecting consumers”

Based on filings made by GroupMe after submitting its petition, the FCC stated that GroupMe had narrowed its request for a declaratory ruling and, therefore, only addressed the issue of whether GroupMe can obtain the necessary consent from intermediaries to send messages, assuming — without deciding — that GroupMe utilizes an ATDS. Based on the facts presented by GroupMe related to its group-messaging service, the FCC ruled that “a consumer’s prior express consent may be obtained through and conveyed by an intermediary, such as the organizer of a group using GroupMe’s service.” The FCC reasoned that allowing intermediaries to obtain the necessary consent would not diminish the TCPA’s goal of protecting consumers from unwanted calls, because as the sender of the messages under consideration, GroupMe would still remain liable if an intermediary had not, in fact, obtained the call recipient’s consent to join GroupMe’s service.

Although the FCC did not specifically address other aspects of the TCPA sought to be clarified in other pending petitions, the FCC did favorably cite two comments asserting that only the initial person making a call has an obligation to obtain consent, and that intermediaries in the transmission path should not be required to obtain consent. The FCC is therefore arguably setting the groundwork to incrementally bring some common-sense back to interpreting the TCPA, rather than letting the courts act as the only check on class-action lawyers’ imaginations. But because GroupMe never disputed that it was the entity sending the text messages at issue, the FCC’s order was therefore limited to the facts before it.

A copy of the FCC’s order can be found here.