Waves of class actions have recently alleged that the delivery of an opt-out confirmation text message violates the Telephone Consumer Protection Act (“TCPA”). Thus, a Federal Communications Commission (“Commission”) Declaratory Ruling finding that a single opt-out confirmation text does not violate the TCPA comes at a crucial time.1 The Commission’s decision, issued on November 29, 2012, is a welcome relief to companies facing these cases.
The TCPA generally permits the delivery of text messages to consumers after receiving prior express consent to do so. Numerous plaintiffs have taken the position that an opt-out confirmation message violates the TCPA because it is delivered after consent has been revoked. In its ruling, however, the Commission found that a consumer’s prior express consent to receive a text message can be reasonably construed to include consent to receive a final, one-time message confirming that the consumer has revoked such consent. Specifically, delivery of an opt-out confirmation text message does not violate the TCPA provided that it: 1) merely confirms the consumer’s opt-out request and does not include any marketing or promotional information; and 2) is the only message sent to the consumer after receipt of his or her opt-out request. In addition, the Commission explained that if the opt-out confirmation text is sent within five minutes of receipt of the opt-out, 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 messages fall within the original prior consent.”
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