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November 2017 TCPA Compliance Monitoring Report
On October 20, ContextMedia, Inc. d/b/a Outcome Health (“Outcome”) petitioned the Federal Communications Commission (“Commission” or “FCC”) to clarify that it does not violate the Telephone Consumer protection Act (“TCPA”) if an unknown technical error results in a text being sent to a subscriber after the subscriber asked to stop receiving automated text message alerts. Outcome also asked the Commission to create a limited safe harbor for unknown and inadvertent technical errors that would otherwise give rise to TCPA liability.
Outcome created a daily text message program, “Healthy Tips” (now discontinued), to provide healthy life choices tips to subscribers. Outcome contracted with independent SMS platform providers, first Signal HQ and then Twilio, to manage Healthy Tips. These providers were responsible for maintaining a database of subscribers who opt-in to the program and tracking when a subscriber opts-out (asks to stop receiving messages) of the program. According to Outcome, both Signal HQ and Twilio managed their databases flawlessly outside of the technical glitch that precipitated Outcome’s petition.
In 2015, Outcome shifted the management of Healthy Tips from Signal HQ to Twilio; however, because Signal HQ used a “carriage return” character after each number in its database, Twilio did not associate opt-out/stop requests from subscribers who opted-in when Signal HQ managed the Healthy Tips program and opted-out after Outcome changed SMS platform providers. According to Outcome, neither it nor Signal HQ or Twilio discovered this flaw until an attorney representing a subscriber who opted-out but continued to receive messages contacted Outcome demanding the Company stop texting the attorney’s client.
Outcome claims it shut down the Healthy Tips program the same day it was notified about the glitch. Nonetheless, the subscriber’s attorney filed a putative class action lawsuit against Outcome.
Outcome argues that its situation is similar to an earlier FCC decision regarding SoundBite. In the SoundBite decision, the FCC clarified that a follow-up text message confirming the recipient’s opt-out request from future text messages did not violate the TCPA because it provided certainty to consumers that their opt-out request was successful while continuing to guarantee the TCPA’s protection against unwanted text messages generally. Outcome argues that it should not face liability where it made a good-faith effort to comply with the SoundBite decision.
Outcome also argues the FCC should create a TCPA safe harbor for undetected and inadvertent technical errors. Outcome notes that the Commission has created safe harbors in the past for parties that attempt to comply with the TCPA in good faith. For example, the Commission created a limited safe harbor for calls to a reassigned or ported number if the caller believes it had consent to call a reassigned number.
According to Outcome, creation of a safe harbor would promote TCPA compliance and further the public interest. While the Commission has announced best practices, Outcome claims that unknown technical errors may still arise when using the FCC’s best practices. Therefore, Outcome argues that protecting entities that attempt to comply with the TCPA encourages further compliance with the TCPA, minimizes litigation uncertainty, and ultimately promotes businesses’ ability to communicate with consumers who want to receive a business’s message.
The FCC’s Consumer and Governmental Affairs Bureau sought comment on Outcome’s petition on October 27, 2017. Comments are due by November 27, 2017, and reply comments are due by December 12, 2017.
If you would like to comment on Outcome’s petition or have any questions about how the TCPA may impact your business, please contact Seth Williams, slw@commlawgroup.com, Nate Hardy, njh@commlawgroup.com, or Jane Wagner, jlw@commlawgroup.com.
