In response to a request by SoundBite Communications, a company that sends text messages on behalf of entities like banks, utilities, and retailers, the Federal Communications Commission issued a declaratory ruling that a single text message confirming a consumer’s opt-out of receiving future messages does not violate the Telephone Consumer Protection Act.
SoundBite follows the Mobile Marketing Association’s best practices, which permits the transmission of a confirmatory opt-out message. But a spate of consumer class actions from consumers who received confirmatory messages prompted SoundBite to seek clarification from the agency.
Siding with the two federal courts that have also addressed the issue, the FCC said confirmatory messages “ultimately benefit and protect consumers by helping to ensure. . . that the consumer who ostensibly opted out in fact no longer wished to receive text messages.”
The FCC emphasized that its ruling applies only to a one-time confirmation message when the sender has obtained prior express consent. It concluded that “A consumer’s prior express consent to receive text messages from an entity can be reasonably construed to include consent to receive a final, one-time text message confirming that such consent is being revoked at the request of that consumer.”
Consumer consent for such messages is not unlimited, however. Consent for a confirmation message is limited to texts “that: 1) merely confirm the consumer’s opt-out request and do not include any marketing or promotional information; and 2) are the only additional messages sent to the consumer after receipt of the opt-out request.”
In addition, the message must be sent within minutes of receipt of an opt-out request. Texts sent within five minutes will be presumed to fall within the consumer’s prior express consent, the agency said. “If it takes longer, however, the sender will have to make a showing that such delay was reasonable, and the longer the delay, the more difficult it will be to demonstrate that such message falls within the original prior consent.”
The agency provided an example of a confirmation text that includes impermissible marketing information: “Your request to opt-out of future messages will be honored but we are offering you a 10% discount on our products.” Such a text conveys a marketing message, the FCC said, and is “likely beyond the scope of the consumer’s prior consent.”
The agency also encouraged that marketers explicitly notify their consumers that when they opt into a text campaign, they also consent to a final confirmation text when they opt out.
The ruling emphasized that to date the agency has not received a single complaint regarding confirmation texts, but in fact had received consumer complaints about not receiving a confirmation text after sending an opt-out request. “We believe this supports the conclusion that consumers expect that their prior express consent includes consent not just to the receipt of texts but also the process for opting-out of those text messages, including the receipt of a confirmation message.”
To read the FCC ruling, click here.
Why it matters: The ruling is a victory for marketers who have faced the threat of consumer class actions under the TCPA with the potential for sizable damages. Companies should review their practices to ensure their confirmatory opt-out messages comply with the agency’s requirements, as the FCC said it will monitor consumer complaints and take appropriate action on a case-by-case basis if senders use confirmation texts as an additional opportunity to market.