On February 15, the Federal Communications Commission (“FCC”) adopted new consent revocation rules for robocalls and robotexts, which the FCC defined as calls made using an “automatic telephone dialing system” or an artificial or prerecorded voice. Under the Telephone Consumer Protection Act (“TCPA”) and the FCC’s implementing rules, callers and texters must obtain “prior express consent” or “prior express written consent,” depending on the call/text content, from consumers to send such communications absent an applicable exemption.
According to the Order, the new rules “clarify and strengthen consumers’ rights under the TCPA to grant and revoke consent to receive robocalls and robotexts.” Specifically, the adopted rules (1) “make clearer that revocation of consent can be made in any reasonable manner;” (2) “require that callers honor do-not-call and consent revocation requests as soon as practicable” and within 10 business days of receipt; and (3) “limit text senders to a one-time text message confirming a consumer’s request that no further text messages be sent.” We summarize these new requirements below.
The Order also contains a Further Notice of Proposed Rulemaking pertaining to robocalls and robotexts from wireless providers to their own subscribers, and seeks comment on a request to extend consent revocation requirements to all artificial or prerecorded voice calls.
1) Revoking Consent in Any Reasonable Manner
The FCC adopted a new rule that will permit a called party to revoke consent by using “any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender.”
The new rule gives specific examples of mechanisms and words that constitute a “reasonable means” of revoking consent, including(i) through the use of an automated, interactive voice or key press-activated opt-out mechanism; (ii) through a text response using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe;” and (iii) through a submission to a website or telephone number provided by the sender for consent revocation purposes.
The new rule also states that “[i]f a reply to an incoming text message uses words other than ‘stop,’ ‘quit,’ ‘end,’ ‘revoke,’ ‘opt out,’ ‘cancel’ or ‘unsubscribe,’ the caller must treat that reply text as a valid revocation request if a reasonable person would understand those word to have conveyed a request to revoke consent.” If a text protocol is used that does not accommodate reply texts, then the sender must specify so in the text message and “clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent, such as a telephone number, website link, or instructions to text a different number to revoke consent.”
The use of a method that is not specified under the new rule creates a rebuttable presumption that the consumer has revoked consent unless the sender can demonstrate through a totality of circumstances test that the method the consumer used to revoke consent was not reasonable. The Order states that either the FCC or a court would be the relevant factfinder in a such a dispute.
In adopting these new rules, the FCC expressly declined to permit senders to designate a specific means of revoking consent and limit consent revocation to those means.
2) Timeframe for Honoring Do-Not-Call and Consent Revocation Requests
The FCC amended its rules to require that callers honor revocation-of-consent requests as soon as practicable and no more than 10 business days after receipt of the request. Initially, the FCC proposed requiring callers to honor such requests within 24-hours but commenters raised various concerns with this timeframe. The FCC noted that this new timeframe “is consistent with the timeframe that has been in place for decades to process revocation requests concerning commercial e-mail under [the FCC’s] CAN-SPAM rules.”
3) Use of One-Time Text Message to Confirm Scope of Opt-out
The new rules codify a prior declaratory ruling that the use of “a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the [FCC’s] rules as long as the confirmation text merely confirms the called party’s opt-out request and does not include any marketing or promotional information, and the text is the only additional message sent to the called party after receipt of the opt-out request.” The confirmatory text must be sent within five minutes; if it takes longer, the sender may have to show that the delay in sending the text was reasonable.
Under the new rules, senders who transmit multiple categories of texts in a program can include a request for clarification in an opt-out confirmation text as to whether the revocation request was meant to encompass only a certain category of messages or all such messages. The FCC stated that in “the absence of an affirmative response from the consumer that they wish to continue to receive certain categories of informational calls or text messages from the sender, no further robocalls or robotexts for which consent is required can be made to this consumer.”