FCC Rules That Confirmatory Opt-Out Text Messages Don't Violate the TCPA Under Certain Circumstances

by Perkins Coie
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[author: Debra R. Bernard]

In a ruling that will impact certain aspects of how companies handle their SMS/text message promotional programs, on November 29, 2012, the Federal Communications Commission (FCC) released a Declaratory Ruling regarding the Telephone Consumer Protection Act (TCPA) pursuant to a request by SoundBite Communications, Inc.  In its ruling, the FCC held that a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA where, if sent using an automatic telephone dialing system (as defined by the TCPA): (1) the consumer originally gave prior express consent to receive text messages from the sender; (2) the confirmatory text merely confirms the consumer’s opt-out request and does not include any marketing or promotional information; and (3) is the only additional message sent to the consumer after receipt of the opt-out request.  Further, if the confirmation text is sent within five minutes of receipt of the opt-out request, it will be presumed to fall within the consumer’s prior express consent.  The ruling is significant in that it harmonizes a conflict between the Consumer Best Practices of the Mobile Marketing Association (MMA), which require a confirmatory text message, and plaintiffs’ lawyers and some courts which had considered such confirmatory text messages to be violations of the TCPA.  Notably, however, there are several other petitions pending before the FCC which address various TCPA-related issues, including whether third party consent is sufficient, whether internet-to-phone text messages are covered by the TCPA and clarifications of the definition of an automatic telephone dialing system.  This ruling only dealt with the confirmatory text message issue.

Background

The TCPA imposes restrictions on the use of the telephone network—both landline and wireless—for unsolicited advertising and other calls by telephone and facsimile.  The Act prohibits certain categories of calls made using an automated telephone dialing system and/or prerecorded calls to wireless numbers including SMS/text message calls. The Act authorizes the Commission to adopt limited exemptions.  On February 15, 2012, the Commission released a Report and Order in which, among other things, it determined that prior express consent must be in writing for autodialed telemarketing calls made to wireless numbers, although the required consent for non-telemarketing calls could be obtained either orally or in writing.  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Dkt. 02-278, Report and Order, 27 FCC Rcd 1830 at 1837, 1841, ¶¶ 18, 28 (2012).  The written consent may be obtained through means that are in compliance with the E-SIGN Act, such as email, website form, text message, telephone keypress or voice recording.  To learn more about the Report and Order, read our previous update FCC Releases Final Report and Order Updating Its Rules Implementing the TCPA.

On February 16, 2012, SoundBite filed a Petition for Expedited Declaratory Ruling and on March 30, 2012, the FCC issued a Public Notice seeking comment on the issues raised in SoundBite’s Petition.  The Petition requested the FCC to address whether confirmatory text messages were a violation of the TCPA and whether the system used by SoundBite to send the opt-out confirmations was an “automatic telephone dialing system (ATDS) as defined by the TCPA.  The FCC only addressed the issue of whether confirmatory text messages are TCPA violations and expressly declined to rule on the ATDS issue—although other still-pending petitions raise this issue.

Confirmatory Opt-Outs and the MMA Guidelines

For a number of years, the U.S. Consumer Best Practices guidelines issued by the MMA, the leading global trade association for the mobile marketing industry, suggested that a confirmation of an opt-out request be sent to the subscriber.  Further, guidelines promulgated by CTIA-The Wireless Association also require confirmatory opt-out text messages.  Interestingly, many wireless carriers require compliance with the MMA guidelines by companies sending text messages to their subscribers.  However, there have been a number of class action lawsuits filed alleging that these confirmatory opt-out text messages violate the TCPA,exposing companies to potentially millions of dollars in statutory damages and attorneys’ fee awards.  Thus, there has been tension between what the industry’s best practices required for the benefit of consumers and how the TCPA was being implemented by the courts and the FCC in its silence on this issue.  The ruling resolves that conflict.

Confirmatory Text Messages Are Not Violations of the TCPA 

In ruling that confirmatory text messages do not violate the TCPA (if the characteristics set out above are present), the FCC noted that it was evident from the record that the 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 wished to receive text messages from entities from whom the consumer previously expressed an affirmative desire to receive such messages.”  Moreover, without confirmation, a consumer may not know whether his or her opt-out request was received.  Further, the FCC determined that since many of the carriers now offer unlimited text messaging plans, the limited situations where the consumer may incur a cost from the receipt of one additional text message is outweighed by the benefit of the tangible receipt that their opt-out message had been received and processed.

The Confirmatory Text Message Must Not Contain Any Promotions or Solicitations

The FCC is very clear that the confirmatory text message must not contain any type of solicitation, marketing, advertising or promotion,or attempt to convince the consumer to reconsider his or her opt-out decision.  Additionally, the confirmatory text message should not encourage consumers to call or otherwise contact the sender in an attempt to market,in fact, the FCC specifically noted that a message neutral on its face but which would lead to a marketing message if the consumer contacts the sender, is likely beyond the scope of the prior express consent.  Significantly, in a footnote, the FCC stated that “[w]e acknowledge and encourage some entities’ current practice of explicitly notifying consumers when they initially consent to be contacted by text message that opting into a text campaign means that they are also consenting to a final confirmation text when they opt out.”  The FCC expressly warned that it will monitor consumer complaints and take appropriate action if senders are using confirmation texts to market.

Key Takeaways

Based upon this FCC ruling, companies can now confidently send the confirmatory opt-out text messages as required by the MMA Best Practices guidelines and other industry authorities.  In doing so, however, companies need to be mindful of the following requirements:

  • Prior express written consent must be obtained to send SMS/text advertisements and solicitations to wireless numbers if sent with an automatic telephone dialing system as currently interpreted by the FCC and case law;
  • The prior express written consent may be obtained by means compliant with the E-SIGN Act including permission obtained via an email, website form, text message, telephone keypress or voice recording;
  • If such prior consent has been obtained, companies can send a confirmatory text message to confirm receipt of an opt-out message—although while the FCC encourages notification that consent to receive text messages includes consent to receive a confirmatory opt-out message—it is not required;
  • The confirmatory text message should be sent within five minutes of the receipt of the opt-out request—anything longer increases the burden of proving consent;
  • The confirmatory opt-out can include contact information or instructions as to how a consumer can opt back in to receive future messages;
  • The confirmatory opt-out must not contain any direct or indirect promotions, marketing, advertising or solicitations;
  • The confirmatory op-out must not encourage consumers to call or otherwise contact the
    sender; and
  • After sending the confirmatory text message, no further text messages can be sent to the consumer without a new express written consent by the consumer to receive such messages.

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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