The NPRM (FCC 23-49) proposes to:

1. ensure that revocation of consent does not require the use of specific words or burdensome methods;

2. require that callers honor do-not-call and consent revocation requests within 24 hours of receipt;

3. codify the ruling that consumers only need to revoke consent once to stop all robocalls and robotexts from a specific entity; and

4. allow wireless consumers the option to stop robocalls and robotexts from their own wireless service provider with a qualified exemption for informational voice calls and texts.

Revoking Consent Through Any Reasonable Means

The FCC seeks to clarify that the TCPA allows called parties to revoke prior express consent using “any reasonable method.” The proposed rule would prohibit callers or texters from prescribing an exclusive opt-out mechanism that precludes other reasonable revocation methods. Sending a text message, voicemail, or email to revoke consent to any telephone or email address of the caller would create a rebuttable presumption of revocation absent contrary evidence. The proposed rule would also require businesses using texting platforms that do not support reply texts to clearly and conspicuously disclose that fact on each text and clearly and conspicuously provide reasonable alternatives to revoke consent.

The FCC asks callers to comment on whether they have encountered challenges in complying with FCC precedent allowing consumers to revoke consent using any reasonable method. The NPRM also seeks comment on whether the FCC has struck the right balance between consumer’s privacy interests and caller’s operational obligations for processing opt-out requests. In addition, the FCC asks whether it should codify any limitations on what is reasonable and what types of evidence would suffice for a caller to rebut the presumption that a consumer’s method of revoking consent was reasonable.

Honoring Requests Timely

Citing technological advances and callers’ capability to respond in “near real time,” the FCC’s proposed rule would require callers to honor all company-specific do-not-call and revocation-of-consent requests within a reasonable time not to exceed 24 hours. The FCC seeks comment on whether 24 hours is a reasonable period, or whether in the alternative it should require action  “immediately” or during some other timeframe.

The FCC also proposes to put package delivery callers “on equal footing” with other callers that have been granted an exemption to call wireless telephone numbers without consent by requiring package delivery callers to immediately honor opt-out requests as others exempt callers are required to do. Alternatively, the FCC seeks comment on why package delivery callers should continue to be allowed 30 days to act.

Texting to Confirm Consent Revocation

The FCC proposes to codify its precedent allowing callers to confirm via text consumers’ desire to revoke consent. The proposed rule would allow a one-time text message to confirm a consumer’s request, as long as the message does not include any marketing or promotional information and is the only message sent to the consumer after receipt of the consumer’s opt-out request. The FCC seeks comment on whether callers or consumers have encountered problems with this approach in the past.

To the extent that a consumer receives multiple categories of messages from a caller, the FCC’s rule would also allow callers to include a request for clarification in the confirmatory text message as to whether the consumer wishes to opt-out of all future messages or only certain categories. Absent an affirmative response from the consumer, callers cannot send any additional messages. The FCC asks stakeholders to refresh the record on confirming revocation of consent via text.

Wireless Caller Exemption

The FCC proposes to require wireless providers to honor customer requests to cease autodialed calls and texts and prerecorded or artificial voice calls. The proposed rules would establish a qualified exemption for wireless providers’ informational robocalls and robotexts to their subscribers, if certain conditions are satisfied:

1. Existing Subscriber.  Voice calls and text messages are initiated by a wireless service provider only to an existing subscriber of that wireless service provider at a number maintained by the wireless service provider;

2. Identify Wireless Provider’s Name and Contact Info.  Voice calls and text messages must state the name and contact information of the wireless provider (for voice calls, these disclosures must be made at the beginning of the call);

3. No Marketing.  Voice calls and text messages must not include any telemarketing, solicitation, or advertising;

4. One or Less Minutes.  Voice calls and text messages must be concise, generally one minute or less in length for voice calls or 160 characters or less in length for text messages;

5. Three Messages Within 30-Day Period.  A wireless service provider may initiate a maximum of three voice calls or text messages during any 30-day period;

6. Opportunity to Opt-Out.  A wireless service provider must offer recipients within each message an easy means to opt out of future such messages; voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call; voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls; text messages must inform recipients of the ability to opt out by replying “STOP”; and,

7. Honor Opt-Out Requests Immediately.  A wireless service provider must honor opt-out requests immediately.

The FCC seeks comment on proposed changes, including the conditions and the potential burdens on wireless providers.

Next Steps

As mentioned, the FCC is accepting comment on the NPRM until Monday, July 31, 2023, with reply comments due Monday, August 14, 2023.