FCC Holds Confirmatory Text Messages Do Not Violate TCPA

by Burr & Forman
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In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Nov. 29, 2012)

Pending before the Federal Communications Commission was a Petition to determine whether sending a single text using an Automatic Telephone Dialing System (ATDS) confirming receipt of a request that no further text messages be sent violated the TCPA. The FCC concluded that a text message falls within a recipient’s prior express consent to receive text messages and does not violate the TCPA if it: (1) Merely confirms a consumer’s opt-out request and does not include any marketing or promotional information; and (2) Is the only additional message sent to the consumer after receipt of the opt-out request. Because confirmatory text messages can be sent within minutes, the FCC also concluded that confirmatory text messages sent within five minutes of an opt-out request fall within a consumer’s prior express consent. Confirmatory texts sent more than five minutes after an opt-out request require a showing that such delay was reasonable. The longer the delay, the more difficult it will be to show that the confirmatory text falls within a recipient’s prior express consent.

Adding that it would review questionable confirmation texts on a case-by-case basis, the FCC also stated its belief that such texts including contact information or instructions on how one  can opt back in to receiving text messages fall reasonably within consumer consent, adding that it will monitor consumer complaints and take appropriate action if senders are using confirmation texts as an additional opportunity to market. Notably, the FCC stated that its decision was limited to confirmation texts, and does not extend to follow-up confirmatory voicemails because “[u]nlike requests to stop receiving voice calls, which can be confirmed during the same call in which a consumer has expressed a desire to opt-out, confirmation of a request to stop text messages necessarily requires a two-part exchange between the consumer and the sender of such messages.”

In a Statement of Commissioner AJIT PAI accompanying the FCC’s Order, Commissioner PAI stated that “[i]n regulation, as in sports, it is good to have clear rules [. . .] ambiguities about what’s prohibited and what’s allowed under FCC Rules interpreting the Telephone Consumer Protection Act have forced businesses to guess where their legal obligations lie.” Commissioner Pai added that “[t]his state of affairs serves the interests of trial lawyers rather than consumers and the businesses trying to meet their needs. No longer. Today’s common-sense order ends the legal lacuna and the courtroom arbitrage it has inspired. Hopefully, by making clear that the Act does not prohibit confirmation texts, we will end the litigation that has punished some companies for doing the right thing, as well as the threat of litigation that has deterred others from adopting a sound marketing practice.”

For more information on TCPA regulation and effects, contact Burr & Forman attorney, Joshua Threadcraft, here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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