Caveat Vendor

Another Week, Another TCPA Petition: FCC Seeks Comment on Treatment of User-Initiated SMS under TCPA

December 03, 2013

Matt Gibson

The déjà vu that you may be experiencing is to be expected.  As readers are aware from our previous posts, following the Federal Communication Commission’s (FCC) implementation of new rules under the Telephone Consumer Protection Act (TCPA), several companies formally sought clarification of the FCC’s policies.  The FCC still appears to be sifting through the petitions that it has received, and on December 2 it released a new Public Notice seeking comment on a Petition for Expedited Declaratory Ruling from a video messaging service provider, Glide Talk, Ltd.
Unlike petitioners discussed in our prior posts, Glide Talk does purport to be a telemarketer.  Instead, Glide Talk describes its software and service as “the world’s first video walkie talkie” that enables users to exchange video messages.  Glide Talk’s mobile apps include a feature that allows users to send friends and family members invitations to join the service through SMS text messages.  And there’s the rub: Glide Talk is a defendant in a class action lawsuit in which the plaintiffs allege that Glide Talk violated the TCPA by using an automated telephone dialing system (ATDS) to send unauthorized SMS text message invitations. 

In its filing, Glide Talk has asked the FCC to issue an expedited Declaratory Ruling to confirm that

• The “capacity” of an ATDS is assessed at the time that a call is made;

• Companies that provide services, software and mobile apps, whose features include a mechanism enabling users to initiate text message invitations, do not “make” calls under the TCPA; and

• Even if the FCC determines that such a company has “made” a call under the TCPA, in the context of a user’s social communications to a wireless number, the company can rely on social norms as the basis for the required prior express consent. (Essentially, Glide Talk is asking the FCC to take official notice of the convention that, in social settings, one does not give one’s mobile number to a person with whom one does not wish to communicate in the future.)

Comments on Glide Talk’s petition are due to the FCC by January 3, 2014, and reply comments are due by January 21, 2014.

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