New Revocation Requirements
Under the TCPA, businesses must obtain “prior express written consent” before sending marketing text messages or placing calls using an Automatic Telephone Dialing System (autodialer or ATDS), and prior express consent for informational and transactional messages. The Revocation Rules impose specific requirements for businesses to honor a consumer’s subsequent revocation of their prior express written consent, often referred to as an “opt-out.” Significantly, the Revocation Rules apply regardless of whether the calls and texts are sent for telemarketing and promotional purposes, or for transactional purposes.
1. Revocation by “Any Reasonable Means”
The FCC’s Report and Order issued in February 2024 was intended to codify a 2015 declaratory ruling regarding consumers’ rights to revoke consent. Under the impending Revocation Rules, consumers may revoke prior express consent to autodialed calls and texts by “any reasonable manner.” In practice, this will mean that businesses can no longer specify a singular way for customers to revoke consent.
While the FCC did not define “reasonable means,” it did provide several examples of revocations that would always be reasonable. For instance, it would be per se reasonable for a company to deploy an automated, interactive opt-out mechanism for calls or texts. In the context of texts, a consumer can reasonably revoke consent by responding with the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe.” Additionally, if the calling or texting party designates a specific method for revoking consent, the caller must honor the requests from consumers who use it.
Absent such a per se reasonable revocation, a court must look to the totality of the circumstances to determine whether revocation was reasonable. If “the consumer can reasonably expect” that the revocation has reached the caller, the consumer creates “a rebuttable presumption that the consumer has revoked consent.”
2. Responding to Revocation and Do-Not-Call Requests
The Order further specifies that the calling/texting party must honor revocation requests within a “reasonable time.” To provide certainty for consumers, the FCC provided a “backstop” – a revocation must be effectuated “no longer than 10 business days” after the request. But the FCC emphasized that callers should honor requests “as soon as practicable,” rather than relying on the 10-day backstop, especially in light of technologies that allow such requests to be processed quickly.
3. Effects of Revocation
Businesses should consider several aspects of the Revocation Rules as part of their telemarketing compliance program.
First, following revocation by a consumer, a texting party is limited to a single follow-up message confirming that the consumer will not receive future texts. The follow-up text can request clarification of the scope of the request where the texter sends multiple categories of messages. This rule is meant to apply broadly – the Order gave the specific example of banks that send texts for multiple informational categories such as “fraud alerts, payment notices, and declined card transactions.” A single revocation of consent without clarification from the customer must be presumed to apply to all such categories of texts.
Second, the Revocation Rules apply a consumer’s revocation of consent for informational messages to both informational and marketing messages, while a consumer’s revocation of consent for marketing messages applies only to other marketing messages. Therefore, the clarification text is key for companies to understand the extent to which a customer no longer wishes to receive messages. Note, for a message to be considered informational/transactional, it cannot under any circumstances include any advertising or promotional content. Furthermore, if that follow-up message is sent more than five minutes after receipt of revocation, the texter must show that the delay was reasonable.
Third, under the Revocation Rules, when a consumer revokes consent for texts or calls, the revocation applies to both future texts and calls, unless an exemption applies. This could have significant impacts for businesses who use both texts and calls, as a revocation, regardless of how it is communicated, applies to both forms of communication. Again, this requirement makes the content of the follow-up clarification message all the more crucial, as a consumer may not know that they are opting out of both texts and calls.
Take-aways
As the Revocation Rules go into effect on April 11th, businesses will have to adjust and be ready for different ways a consumer may opt out of calls and/or texts. Almost any kind of opt-out will be fair game so long as the consumer has a reasonable belief their method is reaching the calling or texting business. Whether this means, for example, that a person may enter a brick-and-mortar establishment and demand that a sales associate remove them from a calling or texting list as a reasonable means of opting out will be a fact-specific inquiry left to a court to determine, and it is easy to imagine how such scenarios could arise in future litigation.
In addition, businesses will have to ensure that opt-outs are carefully tracked within a company. As explained above, opting out of texts also opts a consumer out of calls, and opting out of informational texts or calls opts them out of all future calls and texts unless they indicate otherwise. This type of information will need to be carefully tracked in order to ensure customer preferences are honored.
