[author: Erin Kubota]
As we reported here recently, the FCC is seeking public comment on a number of key issues impacting the scope of the Telephone Consumer Protection Act (“TCPA”). One issue of profound significance to be addressed by the FCC, is how, exactly a party may revoke prior express consent to receive so-called robocalls after they had previously agreed to receive such calls.
Earlier this year in ACA Int’l, the D.C. Circuit Court of Appeals upheld the FCC’s earlier rulings that consumer consent to robocalls can be revoked, at least where their contract does not say otherwise. The Court also blessed the FCC’s determination that such revocation can take place via “any reasonable means.”
Not content with that victory, the FCC is now seeking comment on whether it should make revocation requests easier for consumers to make— and for businesses to process—by standardizing the manner by which those revocations can occur. Some possible examples floated by the FCC include: (1) pushing a standardized code on one’s phone (e.g., “*7”), (2) saying “stop calling” in response to a live caller, (3) offering opt-out through a website, or (4) texting back “stop” in response to unwanted texts.
While each of these options has superficial appeal in an era when robocalls are rampant, unintended consequences abound and the devil will be in the details. What works for one caller, industry or business may not work for others. Indeed, the Courts have already blessed the idea that contracting parties can dictate the terms of revocation between themselves, a rule makes good sense to avoid the pitfalls of one-size-fits all solutions.
Focusing on the novel *7 revocation paradigm, for instance, will a consumer pushing “*7” during a telemarketing call be denied important servicing information related to their accounts by that same entity who will no longer be allowed to call for all purposes? Will pushing *7 with respect to a student loan issue prevent a consumer from learning valuable information about their home mortgage? Will a co-borrower pushing *7 on an account result in a primary borrower no longer receiving calls on their cell phones about their own account?
Without clear standards surrounding the direct impact of a *7 keypunch command—i.e. who must stop calling, what phone number, for what purpose, and for how long—the FCC risks creating even more uncertainty in the name of standardization. And while that might seem deliciously ironic to some, we in TCPAland have long ago lost our taste for that delicacy. The FCC needs to provide a revocation paradigm that is actually workable and embarking on a quixotic keypunch revocation solution risks replacing a handful of old problems with a pile of new ones.
Reducing consumer revocation efforts to a *7 may mechanize consumer into a language easily understood by machines—a concept Cambridge Analytica would certainly appreciate—but it overlooks the human being behind the keypunch. The risk of an uneducated, or perhaps rash, individual depriving themselves of access to information needed in the future because a moment of frustration or confusion is simply too real to ignore. And the risk of an implementing Order that leaves too many questions with respect to how callers can actually make use of the *7 data hits too close to home for those who have suffered under the relentlessly vague “declaratory” TCPA rulings the FCC has handed down over the last decade.
Presumably industry participants will answer the FCC’s call for comment and address how a *7 revocation paradigm would impact their institution. Let’s hope so. If not, American businesses may be left trying to implement yet another in a long of half-baked TCPA ideas.