On March 5, 2024, the Federal Communications Commission announced that it has adopted new rules and codified previously adopted protections that make it simpler for consumers to revoke consent to unwanted robocalls and robotexts (specifically, autodialed and/or artificial/ prerecorded voice calls and texts) while requiring that callers and texters honor these requests in a timely manner.

Specifically, the FCC has adopted rules to make clear that revocation of consent can be made in any reasonable manner, require that callers honor do-not-call and consent revocation requests within a reasonable time not to exceed ten (10) business days of receipt, and limit text senders to a one-time text message confirming a consumer's request that no further text messages be sent under the Telephone Consumer Protection Act.

Summary

In the final rule, the FCC clarifies and strengthens consumers' rights to grant and revoke consent to receive autodialed and/or artificial/prerecorded voice calls and texts.

The new rules:

1. Make clearer that revocation of consent can be made in any reasonable manner;

2. Require that callers honor do-not-call and consent revocation requests within a reasonable time not to exceed ten (10) business days of receipt; and

3. Limit text senders to a one-time text message confirming a consumer's request that no further text messages be sent, as well as confirming that any revocation of consent applies only to those autodialed and/or artificial/prerecorded voice calls and texts for which consent is required.

Telemarketers should consult with an experience performance marketing compliance and ecommerce lawyer to discuss the scope of the new rules and protections.

Revoking Consent in Any Reasonable Way

The FCC has sought to strengthen consumers’ right to revoke consent by any reasonable means by codifying the right and ensuring callers and texters do not unduly restrict it.

The FCC believes this will make clearer to callers and consumers that a consumer has a right to revoke consent under the Telephone Consumer Protection Act. Specifically, the FCC has codified a new rule that will make clear that consumers may revoke prior express consent for autodialed or prerecorded or artificial voice calls and autodialed texts in any reasonable manner that clearly expresses a desire not to receive further calls or text messages, and that callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.

The FCC believes that further clarification as to the methods that are “reasonable” to revoke consent promotes the interests of both consumers and callers by ensuring that such requests are honored. Specifically, the Commission has adopted a new rule that makes clear that any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; via a response of “stop” or a similar, standard response message sent in reply to an incoming text message; or submitted at a website or telephone number provided by the caller to process opt-out requests constitute examples of a reasonable means to revoke consent.

If a called party uses any such method designated by the caller to revoke consent, the FCC onsider that consent to be definitively revoked by a reasonable means, and future robocalls and robotexts from that caller must be stopped.

When the caller offers such a means to revoke consent, that caller cannot allege that the use of such a mechanism by the called party is unreasonable. Any such request made by these specific means constitutes absolute proof that the called party has used a reasonable means to revoke consent.

Additionally, the FCC adopts a standardized list of the specific words that may be used to revoke consent via a reply text message to ensure that automated systems can process such requests. Specifically, the Commission finds that using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel” or “unsubscribe” via reply text message constitutes a per se reasonable means to revoke consent. For purposes of revoking consent via a reply text message, both consumers and the industry commonly use these specific words to convey a reasonable and unambiguous intent to revoke consent. In addition, callers can use automated means to process these words in order to honor revocation of consent requests.

This does not preclude, however, the use of other words and phrases to revoke consent.

If the reply text contains words or phrases other than those listed above, and should any dispute on this point arise, the text sender, who is responsible for processing the revocation request, will have an opportunity to explain why the consumer's use of alternative words or phrases does not constitute a reasonable means to revoke consent. In these situations, the FCC or the court as the finder of fact will conduct a totality-of-circumstances analysis to determine whether the request to revoke consent has been conveyed in a reasonable manner.

Consistent with the 2015 TCPA Order, when assessing whether any particular means of revocation used by a consumer is reasonable, the finder of fact will look to the totality of the facts and circumstances surrounding the specific situation, including, for example, whether the consumer had a reasonable expectation that they could effectively communicate their request for revocation to the caller in that circumstance, and whether the caller can implement the mechanisms to effectuate a requested revocation without incurring undue burdens. The FCC believes this approach balances the ability of consumers to easily stop unwanted text messages with the ability of text senders to reasonably process such requests.

Although the FCC confirms that there is no mandate that texting parties transmitting an autodialed text message must provide consumers with any specific means to revoke consent, such as through the use of reply text messages, the FCC cautions that this may be a reasonable and widely recognized means for text recipients to revoke prior consent to text messages.

There may be instances, however, where a text initiator chooses to use a texting protocol that does not allow reply texts. The FCC has adopted a rule that, in those instances, requires the text initiator to: (i) provide a clear and conspicuous disclosure in each text to the consumer that two-way texting is not available due to technical limitations of the texting protocol; and (ii) clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent, such as a telephone number, website link or instructions to text a different number to revoke consent from further unwanted text messages. The FCC recognizes that character limits on text messages necessitate that such disclosures will need to be succinct to avoid unduly infringing on the sender’s ability to communicate using a text message.

Furthermore, the FCC disagrees with commenters that argue that callers should be allowed to designate the specific means to permit consumers to revoke consent and that revocation requests must be directed only to those designated methods. The FCC therefore codified a prohibition to that end. According to the FCC, allowing callers to limit revocation requests only to the specific means that they have designated potentially places a significant obstacle in the way of consumers who no longer wish to receive such calls by limiting the methods available to revoke consent, which is inconsistent with the consumer privacy protections afforded under the TCPA.

In addition, the clarifications ensure that consumers have the ability to easily exercise their right to revoke consent while providing callers with a reasonable opportunity to process such requests made in any reasonable way. For example, as discussed below, when the consumer chooses to use a method that has not been designated by the caller to process revocation requests, the caller will have an opportunity to prove why the method used is not reasonable.

The FCC has also codified that, when a consumer uses a method other than those discussed above to revoke consent, such as those made by voicemail or email to any telephone number or address at which the consumer can reasonably expect to reach the caller but which has not been designated by the caller as a method to revoke consent, doing so creates a rebuttable presumption that the consumer has revoked consent when the called party satisfies their obligation to produce evidence that such a request has been made, absent evidence to the contrary.

The FCC stresses that, in the event of a dispute, the consumer must identify to the finder of fact the specific method and/or message used to convey their revocation of consent in order to avail themselves of this rebuttable presumption. As discussed above, in these instances when a consumer has demonstrated that they have made a revocation request, and the caller disputes that the revocation request has been made using a reasonable method, a totality of circumstances analysis will determine whether the caller can demonstrate that a request to revoke consent has not been conveyed in a reasonable manner.

The FCC disagrees with commenters who argue this approach is inconsistent with consumers' right to revoke by any reasonable means. The FCC’s approach is a means to ascertain whether a consumer has used a reasonable method to revoke consent when the consumer has used a method of their own choosing rather than one established by the calling or texting entity.

Lastly, the FCC notes that the requirement that callers not make “telephone solicitations” to telephone numbers registered on the National Do-Not-Call Registry unless the caller has obtained the “prior express invitation or permission” of the called party, in writing. The FCC has clarified and amended its rules to make clear that consumers who have given their “prior express invitation or permission” to individual sellers to call their telephone numbers on the National Do-Not-Call Registry have the right to revoke consent by any reasonable means. The FCC's precedent confirming the right of consumers to revoke consent to robocalls applies equally to this situation.

Timeframe for Honoring a Do-Not-Call or Revocation Request

The FCC requires that callers honor company-specific do-not-call and revocation-of-consent requests for robocalls and robotexts that are subject to the TCPA within a specific timeframe. Specifically, the FCC has amended its rules to require that callers honor company-specific do-not-call and revocation-of-consent requests within a reasonable time from the date that the request is made, not to exceed ten (10) business days after receipt of the request.

The FCC will monitor compliance with this obligation to ensure that such requests are honored in a timely manner and reserves the right to adjust this timeframe as necessary in the future as technologies continue to advance, and thereby further reduce the time necessary to process such requests after notice and comment.

The FCC has also amended its rules for exempted package delivery calls to substantially reduce the thirty (30) day timeframe to process such requests allowed in its current rules. Specifically, the Commission amends the exemption that allows package delivery notification robocalls and robotexts without consent to require that opt-out requests be honored within a reasonable time not to exceed six (6) business days.

Revocation Confirmation Text Messages

The FCC has codified a prior declaratory ruling that clarified that a one-time text message confirming a consumer's request that no further text messages be sent does not violate the TCPA or the FCC's rules as long as the confirmation text merely confirms the called party's opt-out request and does not include any marketing or promotional information, and the text is the only additional message sent to the called party after receipt of the opt-out request.

If the confirmation text is sent within five (5) minutes of receipt, it will be presumed to fall within the consumer's prior express consent. If it takes longer, however, the sender will have to make a showing that such delay was reasonable, and the longer this delay, the more difficult it will be to demonstrate that such a message falls within the original prior consent.

In the aforementioned declaratory ruling, the FCC determined that “confirmation messages ultimately benefit and protect consumers by helping to ensure, via such confirmation, that the consumer who ostensibly opted out in fact no longer wishes to receive text messages from entities from whom the consumer previously expressed an affirmative desire to receive such messages.” The FCC agrees with numerous commenters that codifying this ruling will better ensure that both text senders and recipients are aware of this ruling, including the limitations on such one-time confirmation text messages.

The FCC has also adopted its proposal to codify that senders can include a request for clarification in this one-time confirmation text, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer. The FCC limits this opportunity to request clarification to instances where the text recipient has consented to several categories of text messages from the text sender. Thus, this rule will give consumers an opportunity to specify which types of text messages they wish to no longer receive, when the texter sends different types of messages.

That request for clarification can seek confirmation that the consumer wishes to opt out of all categories of messages from the sender, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer that they do, in fact, wish to receive further communications from the sender. The lack of any response to the confirmation text must be treated by the sender as a revocation of consent for all robocalls and robotexts from the sender.

The Commission has codified that any such clarification message must not contain any marketing or advertising content or seek to persuade the recipient to reconsider their opt-out decision. Rather, this clarification is strictly limited to informing the recipient of the broad scope of the opt-out request absent some further confirmation from the consumer that they wish to continue receiving certain categories of text messages from the sender.

The FCC emphasizes that this confirmation text message is limited to a final one-time text message. In the absence of an affirmative response from the consumer that they wish to continue to receive certain categories of informational calls or text messages from the sender, no further robocalls or robotexts for which consent is required can be made to this consumer. In addition, a “stop” or similar text sent in response to the one-time request for confirmation does not then allow the text sender to another request for further clarification.

The FCC has also clarified that any revocation of consent request applies only to those robocalls and robotexts for which consent is required under the TCPA. Once that consent is revoked, the caller may no longer make robocalls or send robotexts to a called party absent an exemption to the consent obligation. However, the FCC has granted exemptions from the consent requirement for certain categories of robocalls and robotexts. In these situations, consent is not required for the caller to make or send certain exempted informational robocalls or robotexts. Instead, the caller is required to comply with specific conditions including number and frequency limits of such communications; the caller must also stop such communications only if the consumer makes a request to opt out of the exempted communications.

As a result, the rule that the FCC has codified that requires callers to honor a revocation of consent request made by any reasonable means applies only to robocalls and robotexts that the called party has consented to receive and is separate from the ability of callers to make such informational communications pursuant to an exemption, which do not require consent.

Therefore, in effect, when a consumer revokes consent with regard to telemarketing robocalls or robotexts, the caller can continue to reach the consumer pursuant to an exempted informational call, which does not require consent, unless and until the consumer separately expresses an intent to opt out of these exempted calls. Where the consumer has revoked consent in response to a telemarketing call or message, it remains unclear whether the consumer has expressed an intent to opt out of otherwise exempted informational calls absent some indication to the contrary.

The FCC agrees with financial institutions' concerns that consumers may inadvertently opt out of exempted informational calls or messages such as fraud alerts when attempting to stop unwanted telemarketing calls from their bank. If the revocation request is made directly in response to an exempted informational call or text, however, this constitutes an opt-out request from the consumer and all further non-emergency robocalls and robotexts must stop. In these circumstances, there is no ambiguity that the consumer's intent is to no longer receive such exempted informational calls from the caller: the opt-out request is a communication from the consumer regarding the exempted informational calls and acts as a revocation of consent for all calls from the caller.

Lastly, the FCC has confirmed that, when consent is revoked in any reasonable manner, that revocation extends to both robocalls and robotexts regardless of the medium used to communicate the revocation of consent. For example, if the consumer revokes consent using a reply text message, then consent is deemed revoked not only to further robotexts but also robocalls from that caller. The TCPA requires that the caller obtain the prior express consent of the “called party.” The FCC has long held that the restriction encompasses both voice calls and texts.

Consent is granted from a consumer to a calling party to be contacted at a particular wireless phone number or residential line. Revocation of consent, therefore, is an instruction that the caller no longer contact the consumer at that number. As a result, consent is specific to the called party and not the method of communication used to revoke consent. Thus, if a called party has revoked consent via any reasonable means, the caller no longer has consent to make further robocalls or robotexts to that called party absent instructions to the contrary from the consumer.

Effective Date

The provisions pertaining to revocation of consent confirmation messages are effective thirty (30) days after publication of the final rule in the Federal Register. The provisions relating to revocation of consent and the timeframe for honoring revocation of consent requests will become effective six (6) months following publication in the Federal Register of a notice indicating that the Office of Management and Budget has completed any required review of the final rule.

Takeaway: Digital marketers, including, but not limited to, lead generators, lead purchasers, telemarketers and call centers should review the new rules carefully and consult with an experienced FTC defense lawyer to immediately design and implement internal processes, compliance protocols and training materials.

The new rules and protections follow the FCC’s recent adoption of the one-to-one lead generation consent requirement (and ruling that telephone calls using AI shall be subject to the TCPA’s prohibitions on artificial and prerecorded messages). The new rules and protections are intended to strengthen the rights of consumers to grant or revoke consent to receive covered robocalls and robotexts under TCPA. Under the TCPA, certain types of calls and texts may only be sent with the prior express consent of the called party. The ability of consumers to exercise this right to provide or revoke consent is essential to protecting the privacy rights of consumers by allowing them to decide which callers may communicate with them via autodialed and/or artificial/prerecorded voice calls and texts. Additionally, the new rules are intended to ensure that requirements relating to providing or revoking consent under the TCPA are clear to both callers and consumers.

Specifically, the FCC makes clear that consumers may revoke prior express consent in any reasonable manner that clearly expresses a desire not to receive further calls or text messages, including using an automated, interactive voice or key press-activated opt-out mechanism on a call, using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” sent in reply to an incoming text message, or pursuant to a website designated by the caller to process opt-out requests. According to the Commission, these approaches constitute a reasonable means to revoke consent and that callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.

The new rules and protections also require that callers honor do-not-call and revocation requests within a reasonable time not to exceed ten (10) business days of receipt, and reiterate that that consumers only need to revoke consent once to stop getting all calls and texts from a specific entity. They also codify that a one-time text message confirming a consumer's request that no further text messages be sent does not violate the TCPA or the Commission's rules as long as the confirmation text merely confirms the called party's opt-out request, does not include any marketing or promotional information, and the text is the only additional message sent to the called party after receipt of the opt-out request.

The new rules may result in modified reporting, recordkeeping or other compliance requirements for some entities. In cases where consumers invoke their right to grant or revoke consent to such callers to receive robocalls and robotexts under the TCPA, these callers may need to implement new methods to record and track such revocation requests to honor them within the specified timeframes. This includes honoring any revocation or do-not-call requests made by any reasonable means including by using an automated, interactive voice or key press-activated opt-out mechanism on a call, using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” sent in reply to an incoming text message, or pursuant to a website designated by the caller when those options are provided by the calling party. In situations where a text initiator chooses to use a texting protocol that does not allow reply texts, the text initiator must: (i) provide a clear and conspicuous disclosure in each text to the consumer that two-way texting is not available due to technical limitations of the texting protocol; and (ii) clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent, such as a telephone number, website link, or instructions to text a different number to revoke consent from further unwanted text messages. In addition, callers must process such requests within a reasonable time not to exceed ten (10) business days of receipt, and within six (6) business days for package delivery services. This may necessitate small and other entities to update their current systems and processes for handling such requests.