FCC Updates TCPA Rules for Revocation of Consent

Lerman Senter PLLC

The FCC adopted a Report and Order and Further Notice of Proposed Rulemaking codifying existing revocation of consent requirements and establishing new opt-out rules under the Telephone Consumer Protection Act (TCPA). The Report and Order provides a 6-month transition period for callers/texters to implement the new rules, starting upon publication of OMB approval. The rules generally:

  • Clarify that revocation of consent can be made in any reasonable manner, and prohibit callers/texters from designating an exclusive method by which consumers may revoke consent.
  • Require callers/texters to honor do-not-call and consent revocation requests within a “reasonable time” not to exceed 10 business days of receipt.
  • Limit text senders to a one-time message confirming a consumer’s request that no further text messages be sent.

In addition to codifying that revocation of consent can be made in any reasonable manner, the FCC also adopted a new rule clarifying that the following constitute reasonable means to revoke consent: a revocation request made using an automated, interactive voice or key press activated opt-out mechanism; using “stop” or a similar message sent in reply to an incoming text message; or using a caller/texter’s designated opt-out process. If a consumer does not use one of these methods, and the caller/texter challenges the reasonableness of the opt-out method used, the caller/texter must demonstrate based on the totality of the circumstances that the consumer’s chosen opt-out method was not reasonable. The FCC found that the words “stop,” “quit,” “end,” “revoke,” “opt-out,” “cancel,” and “unsubscribe” all constitute per se reasonable means of revoking consent via text.

The Report and Order further addresses how a caller/texter must effectuate a revocation of consent request. A revocation of consent, regardless of the method used for revocation, revokes consent for all further texts and calls that require prior consent (this includes calls and texts for which consent is presumed from the actions of the call/text recipient). Calls and texts may continue for exempt communications, where prior consent is not required. If, however, a revocation of consent is made directly in response to a call/text for which prior consent is not required, the revocation of consent applies to all texts and calls regulated by the TCPA not made for emergency purposes, including those that do not require prior consent. A texter can attempt to obtain clarification on the scope of the revocation request by sending a one-time text in response to the opt-out request asking the consumer to clarify the scope of the opt out. If the texted party does not respond to the text, the revocation request defaults to all calls/texts.

The Further Notice of Proposed Rulemaking seeks comment on whether robocalls and robotexts sent to subscribers from their wireless provider should be considered subject to the TCPA rules (including those that permit consumers to opt out of robocalls and robotexts), and whether the FCC should prescribe a specific interactive opt-out mechanism for all robocalls.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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