November 18, 2019
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?
TCPA Law Concerns
In 2012, in response to a petition from SoundBite Communications, Inc., the FCC ruled that a sender may confirm a revocation text message by transmitting a one-time opt-out confirmation message without violating the TCPA. Capital One has petitioned the FCC to, in effect, extend the SoundBite holding beyond mere confirmation text messages to also include clarification text messages. According to Capital One, once customers provide express consent to receive text messages from the Eno system, they can choose to receive automatic text messages ranging from balance updates and fraud alerts, to the hours of operation at a local Capital One branch. In its petition, Capital One presented a hypothetical in which a customer received a text message regarding a declined card transaction and replied with “stop.” In that context, it would be unclear whether the customer wanted to opt out of receiving all messages from Capital One, including payment notices and fraud alerts, or only card decline notices.
Capital One argues that SoundBite should be interpreted to allow it to clarify the scope of a customer’s opt-out request by asking whether the customer wanted to stop receiving card decline notices or all texts from the Eno system. However, due to the fact that the FCC has “yet to act more broadly on TCPA reform,” Capital One has requested that the FCC issue a declaratory ruling to confirm its position. Importantly, Capital One recognized in its papers that any such responsive texts requesting clarity on the scope of the opt-out request could not include marketing content or encourage the customer to reconsider her/his opt-out request.
Opt-Out Best Practices
As demonstrated by this petition, the scope of a consumer opt-out request is not always clear. However, the desire for clarity has to be balanced with reality: TCPA violations can lead to significant legal exposure. As such, until the FCC provides further clarification on this topic, best practices dictate not to follow up on ambiguous opt-out requests. Put simply, if a consumer opts out of a marketing or informational text, the safest response is not responding at all, even though guidelines from the Mobile Marketing Association (“MMA”) and Cellular Telecommunications Industry Association (“CTIA”) recommend sending confirmatory texts to unambiguous opt-out requests.
As Capital One’s request highlights, the vagueness of TCPA law and the FCC’s silence on this topic have created significant industry confusion and uncertainty. To avoid future legal action, businesses and marketers should consult with competent legal counsel concerning their text message marketing practices and procedures.
The material contained herein is provided for informational 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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