As readers of this blog know, on May 18, 2023, the Federal Communications Commission (“FCC” or “Commission”) issued a Notice of Proposed Rulemaking (“NPRM”). In addition to recommending that opt-out requests be honored within 24 hours of receipt, the NPRM proposes to codify a prior Commission ruling that a single confirmation text may be sent to consumers in order to confirm consent revocation.
Confirmation Text Dos and Don’ts
The Commission proposes to codify that it is not a violation of the Telephone Consumer Protection Act (“TCPA”) for marketers to send a one-time confirmation text message to consumers to confirm that they no longer wish to receive further text message communications. The proposal would confirm the Commission’s Soundbite Declaratory Ruling.
In response to a petition filed by Capital One Services, LLC, the FCC wishes to also clarify that the confirmation text message may include a request for clarification as to the scope of the communication(s) that the recipient wishes to no longer receive. Such clarification request would ensure that the recipient wishes to opt-out of all communications, as opposed to those relating to specific topics. For example, if a consumer texts “STOP” in response to a declined credit card transaction, it would be unclear as to whether the opt-out should apply to all messages, including payment due notices and requested fraud alerts, or just card decline messages. Notwithstanding the foregoing, the NPRM details that if the recipient does not respond or responds “STOP” to the one-time message, the sender must treat that as affirmative confirmation that the recipient wishes to opt-out of all further text message communication.
The FCC explains that the one-time text “message must not contain any marketing or advertising content or seek to persuade the recipient to reconsider their opt-out decision.”
In explaining its proposal, the Commission reasons that codifying the Soundbite Ruling would help ensure that senders and recipients are aware of the rule.
Next Steps of the NPRM
On June 8, 2023, the NPRM was adopted by the Commission. Interested parties have 30 days to file comments following publication in the Federal Register. Along with other comments, twenty-eight (28) State Attorneys General have filed Reply Comments in support of the NPRM. The attorneys general have requested in their comments that the FCC close the “lead generator loophole” and clarify that the TCPA requires that “prior express written consent for telemarketing be between a specific consumer and a specific seller.” Doing so, according to the attorneys general, would better protect consumers from unwanted telemarketing calls/texts. We will continue to track the NRPM and keep readers of our blog updated on developments.
Issuance of the NPRM demonstrates a clear and continued effort by the FCC to limit certain telemarketing activity. This rulemaking once again signals to telemarketers that compliance with the ever-changing landscape is both ongoing and extremely important.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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