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FCC Rules Text Messages Confirming Consumer Opt-outs Do Not Violate TCPA
Practical Law Legal Update 5-522-7618 (Approx. 4 pages)
FCC Rules Text Messages Confirming Consumer Opt-outs Do Not Violate TCPA
by PLC Intellectual Property & Technology
| Law stated as of 30 Nov 2012 • USA (National/Federal) |
The FCC issued a declaratory ruling confirming that a one-time text message that confirms a consumer's request to opt-out of receiving text messages and meets specified criteria does not violate the Telephone Consumer Protection Act or FCC rules.
On November 26, 2012, the FCC adopted a declaratory ruling confirming that sending a one-time text message or text confirming a consumer's request not to receive future texts from the sender (opt-out request) does not violate the Telephone Consumer Protection Act or FCC rules. The FCC made its determination in response to a petition filed by SoundBite Communications, Inc. seeking a declaration on the issue and following a public comment period.
The ruling reflects the FCC's conclusion that it is reasonable to construe a consumer's prior express consent to receive texts as including consent to receive a final one-time text confirming receipt of a request to stop receiving those messages. The ruling clarifies that it applies only where all of the following criteria are met:
- The sender previously obtained the consumer's express consent to receive the sender's texts (including to receive autodialed texts).
- The confirming text:
- merely confirms the consumer's opt-out request;
- does not include any marketing or promotional information; and
- is the only additional message sent to the customer after the sender's receipt of the opt-out request.
- The sender either sends the confirming text within five minutes of receiving the opt-out request or shows that the delay was reasonable.
The FCC will review questionable confirmation text messages on a case-by-case, but noted for example that:
- Including contact information or instructions as to how a consumer can opt back in to receiving texts reasonably falls within the scope of consumers' consent.
- Confirmation texts that include marketing or promotional materials, or encourage the consumer to call or contact the sender in a marketing effort are likely outside the scope of that consent. This includes messages that do not include marketing language but that lead to a marketing message if the consumer contacts the sender.
The FCC also emphasized that its ruling:
- Applies only to confirmation texts and not to follow-up confirmation voice calls, reasoning that if a consumer opts out of receiving voice calls, confirmation can be given during the same call in which the consumer makes the request.
- Does not impact the TCPA's broad prohibition of sending autodialed text messages without prior express consent.
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