On February 15, 2024, the Federal Communications Commission (FCC) voted to adopt rules expressly addressing revocation of consent. The FCC’s stated goals were to “strengthen consumers’ ability to revoke consent” and “codify previously adopted protections that make it simpler for consumers to revoke consent.” The new regulations are a result of the FCC’s release of a Notice of Proposed Rulemaking on June 9, 2023, which sought comment on issues of revocation of consent.

In its order, the agency adopts the following revocation rules:

• Identifiable revocation parameters and presumptions for “any reasonable means.” The order codifies the FCC’s 2015 Omnibus revocation ruling, which confirmed that consumers who provided prior express consent to receive autodialed or prerecorded voice calls may revoke such consent by “any reasonable means.” The FCC also confirms that callers are not permitted to “designate any exclusive means” for revocation.

  The FCC’s regulations include per se “reasonable” opt-out methods, including any revocation request made via an “automated, interactive voice or key press-activated opt-out mechanism.” For text messaging, the FCC adopts a standardized list of key words that must be honored: “stop,” “quit,” “end,” “revoke,” “opt out,” "cancel,” or “unsubscribe.” If a text contains words or phrases outside these key words, the finder of fact “will look to the totality of the facts and circumstances” to determine the reasonability of the request. Where a consumer uses a revocation method other than a means specified in the order, this “creates a rebuttable presumption that the consumer has revoked consent” absent evidence to the contrary.

  Further, the FCC’s rules provide that if a texting protocol does not allow reply messages, the text initiator must “provide a clear and conspicuous disclosure in each text to the consumer that two-way texting is not available due to technical limitations” and “clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent.”

• Reduced timeframe for honoring Do-Not-Call or revocation requests. The FCC shortens the timeframe within which callers must honor company specific do-not-call and revocation requests to “within a reasonable period of time from the date that the request is made, not to exceed 10 business days after receipt of the request.”

  Option to send confirmation text with clarification request. The FCC clarifies that a one-time text message “confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the Commission’s rules” so long as the message “merely confirms the called party’s-opt out request” and “does not include any marketing or promotion information.” The new regulations presume that a confirmation text sent within five minutes of receipt of the opt-out message falls within the scope of the original consent; any message sent after this time is not entitled to such a presumption.

  Where the text recipient has consented to several categories of text messages from the sender, the FCC also permits a sender to request clarification, within the confirmation message, as to what categories of communications the consumer is revoking consent to receive. A consumer’s failure to respond to the confirmation text must be treated as “a revocation of consent for all robocalls and robotexts from the sender.”

• Scope of revocation. The FCC broadly construes revocation in two ways. First, the FCC finds that a revocation prohibits any further calls for which consent is required (whether telemarketing or informational) to the consumer’s phone number. However, the FCC recognizes that non-regulated or exempted calls for which consent is not required may continue unless and until the consumer separately opts out of these exempted communications. Second, the FCC confirms that “when consent is revoked in any reasonable manner, that revocation extends to both robocalls and robotexts regardless of the medium used to communication the revocation of consent.”

In addition to adopting the rules described above, the order also contains a separate further notice of proposed rulemaking (FNPR) seeking comment on two additional issues: (1) whether wireless providers require additional consent to robocall or robotext their subscribers, beyond that provided by the unique nature of their relationship with their subscribers; and (2) whether the FCC should amend its rules to require an automated opt-out mechanism on every call that contains a prerecorded voice.

The order was published in the Federal Register on March 5, 2024. The amendment allowing a one-time confirmatory text message, codified as 47 CFR 64.1200(a)(12) went into effect on April 4, 2024. The other remaining rule changes are currently stayed as they are subject to review by the Office of Management and Budget.

To read the order and the FNPR, click here.

Why it matters

The FCC continues to expand TCPA protections and with this latest move codifies the called party’s ability to revoke consent to automated calls by any reasonable means. The FCC’s new parameters for revocation of consent, such as defining the scope of revocation and imposing a ten-day maximum timeframe within which to implement a do-not-call or revocation request, may render existing business practices violative of the TCPA regulations. Companies should revisit their do-not-call policies, their calling practices and their internal procedures for processing do-not-call and revocation requests to ensure these policies and procedures are in alignment with the FCC’s new regulations. Accompanying training updates may also be needed. Additionally, companies should take stock of their text programs to ensure that their functionality satisfies the FCC’s new text-specific requirements. Companies may also consider implementing a clarifying message at time of opt-out, particularly if they maintain multiple text programs. Lastly, while the FCC’s ruling uses consumer-focused language, the revocation regulations apply to all automated calls and texts, including those made to businesses; B2B calls are not exempt from such requirements.