The petitioner at issue, GroupMe, Inc., offers a group text messaging service. An individual who wants to create a text messaging group using GroupMe must agree to its terms of service, which require the group organizer to represent that each individual added to the group has consented to be added and to receive text messages. After the group organizer provides the cell phone numbers of each group member to GroupMe, the application then sends up to four text messages to each member's cell phone for what it claims are administrative, non-telemarketing purposes.
The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, prohibits making any call to a cell phone using an autodialer or an artificial or prerecorded voice, except in cases of an emergency or where the call (or text message) was made with the “prior express consent” of the called party. In its Declaratory Ruling, the FCC clarified that “where the consumer has agreed to participate in a GroupMe group, agreed to receive associated calls and texts, and provided his or her wireless telephone number to the group organizer for that purpose, the TCPA’s prior express consent requirement is satisfied with respect to both GroupMe and the group members regarding that particular group, but only regarding that particular group.”
Thus, a consumer can provide his or her prior express consent to autodialed or prerecorded calls through an intermediary. However, consent is only specific to the actual consent given—after obtaining a consumer’s express consent to autodialed text messages in relation to a particular group, GroupMe would be prohibited from then text messaging the consumer with advertisements or in relation to another group for which express consent had not been provided. It is also important to note that a sender of autodialed or prerecorded calls or text messages like GroupMe will still be liable under the TCPA if it did not actually have the prior express consent of the called party, such as where the intermediary provided incorrect information or never had the consent of the consumer to begin with. Therefore, a business should be very wary about obtaining “prior express consent” through an intermediary—if the consumer never actually consented to a company’s autodialed or prerecorded calls or texts, it risks opening itself up to liability under the statute.