Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554

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1 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC ) In the Matter of ) ) TextMe, Inc. ) CG Docket No ) Petition for Declaratory Ruling ) ) REPLY COMMENTS OF TEXTME, INC. Ronald W. Del Sesto, Jr. Courtney Smith Bingham McCutchen, LLP 2020 K STREET, NW Washington, DC Counsel for TextMe, Inc. Dated: May 22, 2014 A/

2 TABLE OF CONTENTS Page SUMMARY... i I. OPPOSING COMMENTERS MISREPRESENT TEXTME S TEXT MESSAGING SERVICES... 3 II. III. IV. THE COMMISSION SHOULD ISSUE A DECLARATORY RULING CLARIFYING AND LIMITING THE SCOPE OF THE TCPA S DEFINITION OF AN ATDS... 6 THE COMMISSION SHOULD ISSUE A DECLARATORY RULING CLARIFYING THAT TEXTME DOES NOT MAKE CALLS PURSUANT TO THE TCPA CONCLUSION i

3 Summary TextMe submits these reply comments supporting its Petition for Expedited Declaratory Ruling and Clarification. The parties that have opposed the TextMe Petition are generally Telephone Consumer Protection Act ( TCPA ) plaintiffs, all of whom have a direct financial interest in the continued misinterpretation of the TCPA. The law continues to be interpreted by litigants in a manner that stifles innovation and interferes with personal, non-commercial communications. The clarifications requested by TextMe are necessary to prevent the TCPA from being read so broadly as to undermine legislative intent and deprive consumers of access to innovative products and services. In these reply comments, TextMe addresses several commenters mischaracterizations of the TextMe App and provides further details about the invitational text message function that it previously offered. TextMe also responds to erroneous claims that its invitational text messages are commercial and that TextMe makes money off its users by sending them text ads, both of which misrepresent TextMe s services. TextMe also responds to commenters misguided claims that TextMe enabled spamviting and that users were hired or acted as agents of TextMe when they invited friends to use to the App via text message. TextMe reiterates its request for clarification that the term capacity as used in the statutory definition of an ATDS under 227(a)(1) of the TCPA encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered. TextMe also reiterates its request that the Commission clarify that TextMe does not make calls or send text messages pursuant to the TCPA. In light of the Commission s ruling on the GroupMe Petition, TextMe no longer seeks clarification regarding third party consent obtained through an intermediary. i

4 Granting the relief requested by TextMe would not open a floodgate of spamviting, as some commenters have predicted. TextMe s Petition concerns only non-telemarketing, informational calls or text messages to wireless numbers selected by the TextMe user, such that any clarification from the Commission would be so limited. TextMe respectfully requests that the Commission clarify the relevant provisions of the TCPA as set forth below and in the TextMe Petition. ii

5 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC ) In the Matter of ) ) TextMe, Inc. ) CG Docket No ) Petition for Declaratory Ruling ) ) REPLY COMMENTS OF TEXTME, INC. TextMe, Inc. ( TextMe ), by its undersigned counsel, respectfully submits these comments supporting its Petition for Expedited Declaratory Ruling and Clarification 1 pursuant to the Public Notice issued April 7, 2014 by the Federal Communication Commission ( Commission or FCC ) in the above-referenced proceeding. 2 The record in this proceeding, and the continued flood of litigation over the Telephone Consumer Protection Act ( TCPA ), demonstrate that Commission action is gravely needed. Non-commercial text messages exchanged by users via social media tools continue to form the basis of putative class action lawsuits in which serial plaintiffs seek unreasonable amounts in statutory damages. Continued misinterpretation of the TCPA threatens innovation and risks halting the flow of legitimate and invited personal communications. The clarifications requested by TextMe are necessary to prevent the TCPA from being read so broadly as to undermine legislative intent and deprive consumers of access to innovative products and services. 1 TextMe, Inc. s Petition for Expedited Declaratory Ruling and Clarification, CG Docket No (filed Mar. 18, 2014) ( TextMe Petition ). 2 Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory Ruling Filed by TextMe, Inc., DA (rel. April 7, 2014).

6 As an initial matter, TextMe no longer seeks clarification regarding intermediary consent. 3 The Commission clarified that service providers can rely on intermediary consent when sending non-commercial, administrative text messages in the GroupMe Order. 4 Accordingly, TextMe no longer seeks clarification regarding consent obtained through an intermediary; instead, TextMe narrows its petition to seek clarification of the definition of an ATDS and that TextMe users send text messages, not the company. The record developed in connection with the TextMe Petition demonstrates that a majority of the parties filing in opposition to the TextMe Petition are TCPA plaintiffs. 5 These commenters therefore have a direct financial interest in expanding the amount of frivolous TCPA litigation. They do not represent the consumer interests intended to be protected by the TCPA; rather, these commenters advocate an overly expansive interpretation of the TCPA that contravenes legislative intent and undermines consumer interests. In these reply comments, TextMe addresses several commenters mischaracterizations of the TextMe App and provides further details about the invitational text message function that it previously offered. TextMe also responds to erroneous claims that its invitational text messages are commercial and that TextMe makes money off its users by sending them text ads. TextMe also responds to commenters misguided claims that TextMe enabled spamviting and 3 See TextMe Petition. 4 Declaratory Ruling in the Matter of GroupMe, Inc./Skype Communications S.A.R.L. Petition for Expedited Declaratory Ruling, CG Docket No (released March 27, 2014) (clarifying that a consumer s prior express consent may be obtained through and conveyed by an intermediary) ( GroupMe Order ). 5 See, e.g., Joe Shields v. Americor Lending Group, Inc. et al., No CV (Tex. App.); Gerald Roylance v. ADT Security Services, Inc. et al., No. 5:08-cv JF (N.D. Ca.); Roylance v. Matsuura (In re Matsuura), 2011 TCPA Rep (2011); Robert Biggerstaff v. Low Country Drug Screening, No. 99-SC , (Magis. Ct. S.C.). 2

7 that users were hired or acted as agents of TextMe when they invited friends to use to the App via text message. TextMe reiterates its request that the Commission clarify that the term capacity as used in the statutory definition of an ATDS under 227(a)(1) of the TCPA encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered. TextMe also reiterates its request that the Commission clarify that TextMe does not make calls or send text messages pursuant to the TCPA. Commission clarification as to the remaining issues addressed in the TextMe Petition would more effectively discourage the abusive marketing practices that the TCPA was meant to target, and would provide valuable guidance to courts handling an everincreasing volume of TCPA-related lawsuits. I. OPPOSING COMMENTERS MISREPRESENT TEXTME S TEXT MESSAGING SERVICES A common theme among the comments submitted by the TCPA plaintiffs opposing TextMe s Petition is the false assertion that TextMe intends to send commercial text messages through its service. One commenter likens TextMe s services to mass marketing campaigns in which a marketer calls a list of contacts using demographic criteria, or an app tricks a user by sending a message to all of the user s contacts. 6 The commenter claims that TextMe makes 6 Al Smith Comments, CG Docket No , at 1 (filed May 7, 2014). Mr. Smith also states generally that text messages unfairly impact low income consumers that use pay-per-text calling plans. Setting aside this argument s irrelevance to the issues raised in TextMe s Petition, the invitational text function enabled TextMe users to communicate for free, without the charges that may occur under a typical calling plan. Moreover, TextMe addresses the issue of charges in its Terms, and by using the app, users agree to take responsibility for any applicable charges. TextMe Terms and Conditions, Rate plan, available at ( TextMe is not responsible for text messaging rates charged by mobile operators/carriers and incurred by recipients for receiving or sending messages from or to TextMe users. ). Finally, as the Commission recognizes, most subscribers in the U.S. have unlimited calling and texting 3

8 money off its users by sending them text ads, and that invitational text messages are somehow commercial in nature. 7 Another commenter misrepresents TextMe s invitational text messages as a form of spamviting, growth hacking, or app spam, based on an article and press release issued earlier this year. 8 Commenters also suggest that TextMe hires users to send messages on its behalf or that, because TextMe allegedly benefits from the invitations, users are somehow agents of TextMe. 9 None of these claims withstand scrutiny. First, the comparisons of TextMe s invitational texts to mass marketing or the tricking of users by automatically contacting their entire device address list are entirely baseless. Invitational text messages sent through the TextMe App are sent only to individual contacts, at the election of the user not by default when anyone uses the App. During the time the invite function was available through the App, TextMe made very clear, in-app, that invitational text messages could be sent only with the user s confirmation and only after the user completed a multi-step process. 10 TextMe never sent messages to a user s contacts absent this explicit set of actions taken by the user. Commenters representations of the TextMe invite function as a form of spamviting or app spam are similarly disingenuous. The article and press release relied on by one of the wireless plans. See, e.g., SoundBite Communications, Inc. Petition for Declaratory Ruling, CG Docket No , at 10, 10 n.45 (Nov. 29, 2012). 7 Al Smith Comments, at 1. Another commenter also suggests that TextMe s invitational texts are commercial because TextMe is a commercial enterprise. Gerald Roylance s Comments, CG Docket No , at 2 (filed May 7, 2014). These comments seem to target a hypothetical text message that advertises TextMe s services or other promotional offers, which is quite different from the non-commercial invitational texts sent by users hoping to communicate with their contacts via the App. 8 Joe Shields Comments, CG Docket No , at 2 (filed May 8, 2014). 9 Gerald Roylance s Comments, CG Docket No , at 2 (filed May 7, 2014). 10 TextMe Petition, at 5. 4

9 commenters concern several apps that used deceptive practices such as making it difficult to opt out of sending invitations, and permitting user invites to be sent unintentionally rather than at the express option of the user. These comparisons are inapposite. As detailed in the Petition, TextMe offers a free application that users can utilize to send and receive text messages to avoid text messaging fees. TextMe has explored ways to display advertisements to users and other revenuegenerating opportunities, but only through the application and not through the text messaging service. The fact that TextMe generates revenue or that users may see ads when using the App is wholly irrelevant to the invitational texts at issue in the Petition. The overwhelming use of the TextMe service continues to be by individuals and their personal contacts, primarily as a social media tool and in conformity with TextMe s Terms. Accordingly, the uninformed assertions made by some commenters concerning TextMe s advertising practices 11 have no bearing on TextMe s text messaging service and are irrelevant to this proceeding. The exact language of TextMe s invitations texts varied over time, but the content was always the same: the texts identified the inviting user and provided a link to download the App. Making users aware of the availability of a free application that allows users to avoid fees associated with text messaging is not evidence of a commercial communication through text message. Rather, the relevant definition of commercial speech adopted by the Supreme Court is either expression related solely to the economic interests of the speaker and its audience[,] or speech proposing a commercial transaction. 12 A text message alerting users to the availability of a free application does not meet either definition of commercial speech. Additionally, TextMe s invitational text messages were pre-populated to minimize the risk that 11 See, e.g., Gerald Roylance Comments, at 3 (claiming that the invite function was an advertisement of TextMe s services). 12 Central Hudson Gas & Elec. v. Pub. Serv. Comm. of New York, 447 U.S. 557, 561 (1980). 5

10 they would be modified to contain commercial content. In short, no parties provide a legal basis for a finding that TextMe s text messages are commercial. 13 Finally, TextMe cannot reasonably be said to hire users to send messages on its behalf, nor can it be said to have an agency relationship with users who have chosen to send invitational text messages to their contacts. An agency relationship might exist where one party expressly or implicitly authorizes another party to work under his control and on his behalf. Here, TextMe provided the invitational text mechanism as a convenience to its users and to facilitate users ability to communicate for free. TextMe allowed users to select contacts from their device address books and invite those individuals to use the App by undertaking a multi-step process and confirming the intent to send an invite. TextMe users always had a choice of whether to invite their friends to use the App, and only used the App or invited friends to do so by their own accord. Accordingly, the mistaken characterizations made by some commenters about an employment or agency relationship relating to TextMe s text messaging service are irrelevant to this proceeding. II. THE COMMISSION SHOULD ISSUE A DECLARATORY RULING CLARIFYING AND LIMITING THE SCOPE OF THE TCPA S DEFINITION OF AN ATDS Numerous parties agree that the Commission should clarify the meaning of the TCPA ATDS provision as proposed by TextMe. 14 TextMe seeks clarification that the term capacity as 13 It should be noted that in granting the relief requested by TextMe, the Commission would not open the flood gates for spamviting. TextMe s Petition concerns only non-commercial, informational calls or text messages to wireless numbers. Moreover, users choose to send or not to send such messages, not TextMe, by selecting contacts to receive the invitation to download the app so as to communicate for free with the sender. 14 See, e.g., Petition for Rulemaking of ACA International, CG Docket No (filed Jan. 31, 2014); Glide Talk, LTD Petition for Expedited Declaratory Ruling, CG Docket No (filed Oct. 28, 2013) ( Glide Talk Petition ); Professional Association for Customer Engagement Petition for Expedited Declaratory Ruling or, in the Alternative, Petition for Expedited 6

11 used in the statutory definition of an ATDS under 227(a)(1) of the TCPA encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered. Interpretations of the ATDS provision have become exceedingly broad, threatening to sweep millions of everyday devices into its scope. Yet the language of the TCPA, on its face, does not support a definition of an ATDS that includes a device that could be technologically altered or re-configured to have the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, even if it lacked such capacity at the time the relevant calls were placed, and no random or sequential number generator was employed. 15 Where a mobile app cannot automatically dial a number because of a necessary affirmative step by the user (or here, several affirmative steps), the app cannot be said to be an ATDS. 16 TextMe s invitational texts cannot be sent unless a user enters a number, either directly or by selecting a contact from her device address book. This is the same process a user would follow when making a call or text with a standard telephone, without the assistance of a mobile app. As commenters have pointed out, a determination that this process satisfies the capacity requirement would mean that every phone with an address book would fall under the statutory definition of an ATDS, and that any call made from such a phone would be subject to liability Rulemaking, CG Docket No (filed Oct. 18, 2013) ( PACE Petition ); YouMail, Inc. Petition for Expedited Declaratory Ruling and Clarification, CG Docket No (filed Apr. 19, 2013) ( YouMail Petition ); Communication Innovators Petition for Declaratory Ruling, CG Docket No (filed June 7, 2012); GroupMe, Inc. s Petition for Expedited Declaratory Ruling and Clarification, CG Docket No (filed Mar. 1, 2012) ( GroupMe Petition ). 15 TextMe Petition, at See Comments of the Internet Association, CG Docket No , at 2 3 (filed May 7, 2014) (observing that theoretical capacity does not equal capacity under the TCPA). 7

12 under the TCPA. 17 This expansive interpretation is not only illogical, but it has also made it exceedingly difficult to design a compliance strategy using modern telephone technology that will not expose an entity to litigation under the TCPA. 18 One of the TCPA plaintiffs opposing TextMe s petition contends that Congress intended for the ATDS provision to apply broadly to ordinary office equipment used in conjunction with other devices. 19 He cites a portion of the Congressional record, but neglects to include the full excerpt. The relevant portion in its entirety reads: It should be noted that the bill's definition of an automatic telephone dialing system is broad, not only including equipment which is designed or intended to be used to deliver automatically-dialed prerecorded messages, but also including equipment which has the capability to be used in such manner. The Committee is aware of concerns that this broad definition could cover the mere ownership of office computers which are capable, perhaps when used in conjunction with other equipment, of delivering automated messages. Section 225(b)(2) does not impose restrictions on the ownership of such equipment, but only its active use to deliver automatically dialed prerecorded telephone solicitations without live operator intervention. A live operator would be able to disconnect a call to a customer, eliminating the problem of seizing a 17 See, e.g., id. at 3; see also Noble Systems Corporation Comments, at 2 (filed May 7, 2014) ( Defining capacity instead as a potential capacity essentially reads out any meaningful limits of the word capacity in the statute, since in theory, any electronic communications device can be modified to have such capabilities. Any electronic device with a processor can be theoretically modified to have the capacity to dial numbers using a sequential or random number generator, though this may require totally redesigning the device to add hardware, replace the software, add telephony interfaces, etc. ); GroupMe Petition, at (explaining that this sort of interpretation of the ATDS provision allows for retail consumers using smartphones to be subject to TCPA liability). 18 Ex Parte Letter from Burton D. Brillhart, McGlinchey Stafford PLLC, to Marlene H. Dortch, Secretary, FCC, CG Docket No (filed May 13, 2014). 19 Joe Shields Comments, at 2. Note that Mr. Shields, along with other plaintiffs filing comments, have consistently failed to provide the full quotation in other filings made in this docket. See, e.g., GroupMe Reply Comments, CG Docket No , at 12-13, 12 n.41 (noting that Messrs. Biggerstaff, Glauser and Shields all provided the same incomplete snippet of legislative history, as Mr. Shield did here, in their respective comments) (filed Sept. 10, 2012). 8

13 customer s line. The bill does not apply to ADRMP solicitations that include live operator intervention. 20 This portion of the legislative history, in its entirety, supports TextMe s proposed interpretation because text messaging does not interfere with the calling functionality of wireless telephones, nor does TextMe s service allow for the delivery of prerecorded telephone solicitations. An interpretation of capacity that would sweep consumer smartphones within the scope of an ATDS is at odds with the intent of the statute, and accordingly, should be rejected. The absurd interpretation of an ATDS advocated by some parties is further illustrated in reply comments filed by Mr. Roylance. 21 Mr. Roylance posits that [i]t is sufficient that numbers are dialed from a database without human intervention[] and [a] smart phone [sic] contact list is such a database, and dialing it without human intervention is an ATDS. 22 Mr. Roylance s arguments do not survive scrutiny. It is unclear what Mr. Roylance means by without human intervention 23 in connection with the TextMe application. No text messages would ever be sent unless TextMe users engage in a multi-step process resulting in their contacts receiving a text message. 24 Requiring multi-step affirmative conduct by the user is the hallmark of human intervention. Moreover, users can choose not to send any invitational 20 H.R. REP , 101ST Cong., 2ND Sess. 1990, 1990 WL (emphasized text is the portion missing from Mr. Shields comments). 21 See Gerald Roylance Reply Comments, CG Docket No , at 2 (filed May 21, 2014). 22 Id. Mr. Roylance continues by asserting that [f]ine distinctions about capacity are not needed; the app has the capacity to do it because it does it. Id. While there is no argument presented to which to respond, Mr. Roylance appears to ignore the fact that but for the users utilization of the TextMe software, there would be no text messages sent. Thus, the TextMe app does not do it any more than the software installed on smartphones that displays a keypad and allows for sending text messages sends such messages. 23 Id. 24 See TextMe Petition, at 5-6 (explaining that users must take three affirmative steps to send an invitational text message after allowing the TextMe app to access users contact information). 9

14 messages or even bar the app access to their contacts database entirely requiring resetting that preference prior to sending any invitational text messages. Next, Mr. Roylance does not even attempt to distinguish users finding contacts in their smartphone s contact database and then initiating communications, from users utilizing the software provided by TextMe to engage in the same act. If we were to accept Mr. Roylance s position, both activities would constitute the use of an ATDS. But Mr. Roylance fails to explain why one act, i.e., the everyday use of relying on a smartphone contact database to initiate communications, is consistent with TCPA, while users relying on TextMe s software to accomplish the same task violate the TCPA. Clearly such an interpretation of the TCPA is far afield from text of the statute, Congressional intent, and divorced from reality. 25 Another commenter, Mr. Ronald Snyder, addresses the Commission s clarification that predictive dialers fall within the definition of an ATDS. While Mr. Snyder does not directly oppose TextMe s petition, nor does he argue that TextMe s service is a predictive dialer, he states that the concept of automatically dialing one or more telephone numbers from an electronic list or software database should certainly fulfill the definition of an ATDS for all types of automated dialing systems. 26 However, TextMe s services are distinguishable from predictive dialers. As defined by the Commission, a predictive dialer is: 25 See, e.g., Emanuel v. Los Angeles Lakers, Inc., 2013 WL (C.D. Cal. Apr. 18, 2013), at *3 (finding that in order for receipt of a text message to be actionable under the TCPA, the communications must be a nuisance, intrusive, telemarketing message); Ibey v. Taco Bell Corp., 2012 WL (S.D. Cal. 2012), at *3 (holding that the purpose of the TCPA was to prevent unsolicited telemarketing in bulk format); Ryabyshchuck v. Citibank, 2012 WL (S.D. Cal. 2012), at *3-4 (determining that the text message at issue did not result in TCPA liability as it was not an invasion of privacy under the TCPA. ). Id. at *3 (internal citations removed). 26 Letter from Randall A. Snyder to B. Lynn Follansbee, Consumer and Governmental Affairs Bureau, FCC, CG Docket No (filed May 7, 2014). 10

15 [A]n automated dialing system that uses a complex set of algorithms to automatically dial consumers telephone numbers in a manner that predicts the time when a consumer will answer the phone and a telemarketer will be available to take the call. Such software programs are set up in order to minimize the amount of downtime for a telemarketer. In some instances, a consumer answers only to hear dead air because no telemarketer is free to take the call. 27 Unlike the thousands of commercial communications typically generated by predictive dialers, TextMe s invitational text messages are a limited set of non-commercial communications specifically initiated by individual users. Additionally, the numbers to which invitational text messages may be sent are provided to TextMe by the user, and not generated through algorithms. Finally, the individuals that receive invitational text messages are personal contacts of TextMe users. Accordingly, TextMe s services bear no relation to and are distinguishable from predictive dialers. III. THE COMMISSION SHOULD ISSUE A DECLARATORY RULING CLARIFYING THAT TEXTME DOES NOT MAKE CALLS PURSUANT TO THE TCPA The TCPA prohibits parties from mak[ing] any call... using any [ATDS]. 28 TextMe provides software services that allow users to transmit text messages to contacts of their choice offering a convenient way for users to communicate with their personal contacts. However, TextMe does not cause an invitational text message to be sent. 29 If users do not choose any contacts to receive an invitation, then no parties will receive a text message invite. TextMe therefore respectfully requests that the Commission clarify that TextMe does not make calls or send text messages pursuant to the TCPA. Numerous parties face lawsuits for similar types of 27 Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Red 14014, 14143, 8 n.31 (2003) U.S.C. 227(b)(1). 29 TextMe Petition, at 5 7,

16 text messages, even though it is users who are responsible for initiating such communications, and those parties are similarly seeking relief from the Commission. 30 The Supreme Court has defined the word make to mean to cause to exist, appear or occur. 31 Akin to a telephone service provider (exempt from TCPA liability), which provides the infrastructure to connect the call initiated by the calling party, 32 TextMe does not make calls pursuant to the TCPA when users send invitational text messages because TextMe does not cause the text messages to occur. Rather, the user that sends a text invite makes the call because, by performing the multi-step process necessary to send an invite, the user causes the message to exist. To send an invitational text message, a user must first download and install the TextMe App. The user must set up the App and confirm that she consents to allowing TextMe to access her device contact list. The user must then affirmatively choose to INVITE YOUR FRIENDS and complete a multi-step process before an invitational text message is sent. 33 The user can choose to send invites to some, all, or none of her contacts. TextMe therefore does not dictate whether an invitational text message is sent, the timing of the message, or the telephone number to whom the text message is sent See, e.g., Glide Talk Petition, at 14 15; YouMail Petition, at YouMail Petition, at 11 (citing United States v. Giles, 300 U.S. 41, 48 (1937)). 32 Id. at As noted in TextMe s Petition, this function has been disabled pending clarification from the Commission. TextMe Petition, at 5 n See id. at 12 (arguing that YouMail should not be found to make calls for similar reasons). 12

17 The Commission has clarified that the initiation of a call suggests a direct connection between a person or entity and the making of a call. 35 A person or entity initiates a telephone call when it takes the steps necessary to physically place a telephone call. 36 TextMe does not initiate the text messages sent by its users because its software is designed to send an invitational text message only under circumstances determined by its users, and TextMe merely provides the service through which such a message is transmitted. When a software developer provides a tool requiring voluntary and affirmative user interaction, enabling users to initiate communications to their contacts, it is the user and not the software developer making the call or sending the text message pursuant to the TCPA The Joint Petition Filed by DISH Network, LLC, the United State of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules; The Petition Filed by Philip J. Charvat for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules; The Petition Filed by DISH Network, LLC for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules, Declaratory Ruling, 28 FCC Rcd (2013) ( DISH Declaratory Ruling ). 36 Id. 37 TextMe Petition, at

18 IV. CONCLUSION For the foregoing reasons, TextMe respectfully requests that the Commission issue a ruling on two issues. First, the Commission should clarify that the term capacity as used in the statutory definition of an ATDS under 227(a)(1) of the TCPA encompasses only equipment that, at the time of use, could in fact perform the functions described in the TCPA without human intervention and without first being technologically altered. Second, the Commission should clarify that TextMe users, and not TextMe, are the parties making calls or sending text messages for purposes of the TCPA. Dated: May 22, 2014 Respectfully submitted, TextMe, Inc. /s/ Ronald W. Del Sesto, Jr. Courtney Smith Bingham McCutchen, LLP 2020 K ST, NW Washington, DC Counsel for TextMe, Inc. 14

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