On November 1, 2019, Capital One Services, LLC (“Capital One”), filed a Petition for a Declaratory Ruling with the Federal Communications Commission (“FCC”) to determine whether it may send, without violating the Telephone Consumer Privacy Act (“TCPA”), one-time text messages to clarify the scope of ambiguous opt-out requests that it periodically receives from its customers. Specifically, Capital One sought guidance on situations that may arise when customers use its “Eno” text messaging system. Through Eno, customers can receive informational text messages on a variety of topics. Due to the variety of information that may be conveyed via Eno, the scope of a customer’s opt-out request may be unclear – i.e., did the customer wish to stop receiving all text messages or just a specific type of text message? According to the petition, “[i]t is necessary to effectuate consumer intent by allowing Capital One’s customers to have informed control over the scope of their opt-out.” Although Capital One is confident that the TCPA permits it to respond to ambiguous opt-out requests from customers, it noted that the technical nature of TCPA law may still result in its being named as a defendant in unnecessary lawsuits. It, therefore, decided to seek FCC guidance.
How does Capital One use text messages?[Read More]