FCC Issues Declaratory Ruling Allowing Text-Message Opt-Out Confirmations

by Davis Wright Tremaine LLP
Contact

[author: Ronnie London]

Yesterday, the Federal Communications Commission issued a declaratory ruling clarifying that sending a follow-up text-message confirming a consumer’s opt-out from receiving future texts does not itself violate the Telephone Consumer Protection Act (TCPA) or FCC rules. When a consumer texts “stop” etc. to opt out of further text messages, entities that receive the opt-out often send a final text confirming receipt and effectuation of the opt-out. The ruling was requested – and sorely needed – in the face of several putative class actions, including some against such notable names as Twitter and American Express, brought on grounds that the confirmatory texts, coming after the consumer has already opted out, lacked the prior express consent necessary under the TCPA and FCC implementing rules for text-messaging.

The TCPA and FCC rules generally prohibit using automatic telephone dialing systems, or “autodialers,” to make non-emergency calls without prior express consent to, among others, mobile phones. The FCC has long held this prohibition encompasses both voice calls and text messages, including the very popular short message service (SMS) texts. Accordingly, before any entity can send a text message, whether for sales or noncommercial purposes, i.e., regardless of content, prior express consent must have been previously obtained from the prospective recipient(s). Such consented-to text messages generally allow recipients to opt out of future texts, and many companies, consistent with various industry guidelines and best practices, as endorsed by many consumer groups, send post-opt-out confirmatory texts to assure consumers that their opt-outs are received and will be honored.

This approach was followed for a time without much doubt or controversy until putative class actions claimed any text message sent after the consumer opted out, including those simply confirming the opt-out, lacked the necessary consent and thus violated the TCPA and FCC rules. Some courts dismissed these suits on grounds the prior express consent to receive texts in the first instance necessarily includes consent to a single follow-up text confirming that an opt-out was received. Other courts, however, denied motions to dismiss, allowing cases to go forward, paving the way for settlements and/or expensive litigation.

SoundBite, a company that provides text messaging services for many banks, utilities, and retailers, petitioned the FCC to clarify that opt-out confirmation text-messages do not violate the TCPA or FCC rules. It argued such texts do not originate from autodialers, and thus do not violate the TCPA/FCC prohibition regardless of consent, or lack thereof. It also urged that there is a “grace period” after the opt-out is received, to allow the receiving entity time to effectuate the request, during which interim period subsequent texts, including opt-out confirmations, are permissible until the opt-out is effectuated.

The FCC granted SoundBite’s request for clarification, but on a different rationale. It ruled solely on grounds that a text-message recipient who previously granted prior express consent, then opted out, consented broadly enough to allow the post-opt-out confirmatory text, even after the consent has been revoked. The declaratory ruling thus concludes that a consumer’s prior express consent to receive text messages from an entity can be reasonably construed to include consent to receive a final, one-time text message confirming revocation of consent as long as certain conditions are met.

First, the Commission emphasized that the ruling applies only when the text-message sender had previously obtained prior express consent from the consumer to receive text messages using an autodialer. Further, confirmatory texts must merely confirm the opt-out and not include any marketing or promotional information, or attempt to convince the consumer to reconsider, and the confirmation must be the only additional text sent after the opt-out. In addition, confirmation texts must be sent within minutes of receipt of an opt-out request.

There were hopes within the industry that the Commission might take up SoundBite’s invitation to loosen the definition of “autodialer,” which in turn, as the FCC broadly construes it, imposes a fairly broad prohibition on texting without prior express consent. However, at several points, the FCC made clear it holds to its prior determination that text-messaging utilizes “autodialers,” as well as to its broad autodialer definition. It also underscored that the ruling “has no impact on the TCPA’s broad prohibition against sending autodialed text messages in cases where the sender has not obtained the consumer’s prior express consent in the first instance.”

Accordingly, while this is welcome relief – particularly for those still embroiled in, or threatened with, class actions over opt-out confirmation texts – the FCC’s ruling stands on the narrowest possible ground.

Written by:

Davis Wright Tremaine LLP
Contact
more
less

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.