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.