Retailers Ask FCC to Clarify that Text Message Responses Are OK

Written by Ernest C. Cooper

Should retailers be required to obtain written consent before sending a consumer a text message with information or a coupon that was specifically requested?  The Retail Industry Leaders Association (RILA) thinks not, and has filed a petition asking the Federal Communications Commission to clarify that sending a one-time text message in response to a consumer request does not violate FCC telemarketing rules requiring prior written consent for marketing text messages.  The FCC has issued a public notice asking for comments on the petition, which must be submitted by February 21, 2014, with reply comments due by March 10, 2014.

FCC telemarketing rules that went into effect on October 16, 2013, require prior written consent of the called party to send marketing or advertising messages, including text messages.  The RILA petition argues that those rules do not sensibly apply to an “on-demand” text service that provides one-time text message replies to consumer requests for offers.  For example, a consumer might respond to a retailer’s advertising display by texting “discount” to the retailer, which then sends a reply text message to the consumer with a coupon or other discount information.  RILA is concerned that because the reply message is arguably marketing or advertising and is sent without the consumer’s written consent, some persons might charge the retailer is violating the FCC’s telemarketing rules, despite the fact that the reply message was specifically requested by the consumer.

To ensure retailers can send these types of reply messages without risking lawsuits for violation of FCC rules, RILA asks the FCC to clarify that its telemarketing rules do not apply to an “on-demand” text service sending reply messages because the text communications are: (1) initiated by the consumer; (2) one-time messages sent in response to a specific consumer request; and (3) include only specific information requested by the consumer.

The RILA petition is available here.

The FCC’s public notice can be found here.