On November 29, the Federal Communications Commission (FCC) announced that companies will not violate the Telephone Consumer Protection Act (TCPA) if they transmit a final, onetime text to confirm receipt of an opt-out request to consumers who have granted their prior express consent. This Declaratory Ruling, which the FCC can issue to clarify or interpret a statute it oversees, legitimizes the widespread practice among businesses, non-profit organizations and governmental entities that send such final, onetime texts to confirm receipt of a consumer’s optout request.
The TCPA and the FCC’s rules normally prohibit any person from using an automatic dialing system to make a non-emergency call—including a text message—to a mobile telephone number without the prior express consent of the called party. Alleged violations of the TCPA have spawned class action lawsuits that threaten millions of dollars in damages to businesses ranging from Dish Network to Papa John’s. In February, SoundBite Communications—a provider who manages text messaging on behalf of more than 400 companies—asked the FCC for a Declaratory Ruling that automatic opt-out confirmation texts do not violate the TCPA or the FCC’s rules.
On Thursday, the FCC granted SoundBite’s petition, declaring that the TCPA and FCC rules do not prohibit organizations from sending a one-time text message confirming a consumer’s request that no further text messages be sent, provided that the confirmation text: (1) merely confirms the consumer’s opt-out request and does not include any marketing or promotional information and (2) is the only additional message sent to the consumer after receipt of the optout request. The FCC cautions that it will review questionable confirmation texts on a case-bycase basis. The agency believes that confirmation texts may include contact information or even instructions on how a consumer can opt back in, but may not include promotions, marketing or enticements for a customer to contact the sender in an attempt to market.
The FCC also recommends that organizations send these confirmation texts shortly after receiving the opt-out request. The FCC used the example of a confirmation text being sent within five minutes after the opt-out request, stating that it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, the FCC posited that the sender would have to make a showing that such delay was reasonable, and the longer this delay, the more difficult it will be to demonstrate.
The FCC’s guidance is very useful for companies who are diligently attempting to address customer choice, while also complying with the TCPA. Unsubscribe confirmations are common best practices in email and direct mail marketing; the uncertainty of its application in text marketing made the practice more suspect. The Declaratory Ruling clarifies the TCPA application to the unsubscribe text messages. In light of the ruling, companies should review their business practices to confirm that they are sending text messages only to mobile telephone subscribers that have provided prior express consent in the first place, and to have appropriate technical mechanisms in place to provide a timely unsubscribe confirmation when a consumer opts out of future text messages.