FCC Grants Limited Package Delivery Notification “Prior Express Consent” Exemption

On March 27, 2014, the FCC granted, in part, a petition for expedited declaratory ruling filed by the Cargo Airline Association (“CAA”). (The FCC’s CAA Order can be found here.)  In its petition, the CAA asked the FCC: (1) to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package; (2) in the alternative, to declare that package delivery notifications are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.

  In support of its second request, CAA proposed conditions that it asserted would protect consumer’s privacy interests.  While the FCC declined to clarify the consumer consent requirement in this context, the agency relied on its section 227(b)(2)(C) authority (which allows the FCC to exclude from the TCPA’s requirements calls and texts “that are not charged to the called party”) to exempt package delivery companies’ free notifications to customers from the Act’s “prior express consent” restriction, subject to a number of conditions.

In the CAA Order, the FCC determined that package delivery “notifications are the types of normal, expected communications the TCPA was not designed to hinder” and concluded that the CAA’s members had shown their capability to provide free alerts to wireless customers “by, among other options, using third-party solutions that can be used for subscribers of the four nationwide wireless carriers” and “working with other carriers toward similar capability.”  The FCC clarified that for a notification to be considered free it must not count against a wireless customer plan’s minutes or texts.  Furthermore, the FCC concluded that the CAA’s proposed conditions, with some modifications, “will protect consumers’ privacy interests” as required by the TCPA.  Some of the conditions offered by the CAA and adopted by the FCC with modifications include the requirement that that delivery companies send only one alert per package (one extra notification is allowed for each of the two additional attempts to obtain the recipient’s signature); that parties have the ability to opt out of receiving future alerts and that these opt-out requests be honored within thirty days; and that each notification include specific information on how to opt out of future notifications.

The CAA Order provides much needed clarity on how businesses may offer package delivery notifications to customers without risking the thicket of TCPA litigation, and gives other companies interested in providing similar package delivery notifications an incentive to work with wireless carriers and third-party vendors to design “free-to-the-end-user” solutions that fall within this exemption.  Moreover, it suggests the possibility that the FCC may be willing to consider granting exemptions to other kinds of “normal, expected communications.”

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