The Federal Communications Commission issued a Declaratory Ruling late last week that the Telephone Consumer Protection Act permits companies to send a one-time text message to confirm receipt of a consumer's request to receive no further text messages. The ruling responds to SoundBite Communications Inc.'s request earlier this year for clarification under the law, which we reported on in April. Generally, the TCPA (and the FCC's regulations under the Act) prohibits sending text messages using automatic dialing systems without prior express consent. Industry practice is to permit those who have opted into receiving text messages to opt out by texting STOP. Under industry guidelines and best practices, companies have sent a confirmation to consumers informing them that their request was received, and that they have been opted out. This has been litigated by class action lawyers, arguing that the messages are being sent without consent. As we reported last week, at least one court has objected to interpreting the law to say that such confirmations are prohibited. Other defendant companies have hoped that the FCC would agree, and it has. According to the FCC, the one-time text confirming that someone has opted out should be considered part of the opt-out process as long as the following criteria are met: (1) the message only confirms the consumer's opt-out request and does not include any marketing or promotional information; (2) is the only additional message sent after receiving the opt-out request; and (3) the confirmation is sent within five minutes. In reaching its conclusion, the FCC noted that no consumers had complained about the practice, and that getting confirmations after an opt-out were normal and thus expected. In other words, when initially providing consent, the consumer would anticipate that getting an opt-out confirmation would occur if the consumer elected to opt-out of receiving future text messages.

TIP: This ruling should give some comfort to companies concerned that the practice of sending a confirmation text after a consumer opted out of receiving text messages might trigger a class action. To avoid any confusion, companies may still want to consider clarifying in their original consent request that a confirmation text will be sent. As we reported last year, a way to make this disclosure is to indicate that "confirmation message will be sent." Another step to help avoid a potential complaint could be to provide an alternate method of opting out (for example, "email with your cell phone number in your message").