But Ruling Rests on Narrower Rationale Than Advanced by Petitioner, and Comes With Conditions
Yesterday, the Federal Communications Commission issued a declaratory ruling clarifying that sending a follow-up text-message confirming a consumer’s opt-out from receiving future texts does not itself violate the Telephone Consumer Protection Act (TCPA) or FCC rules. When a consumer texts “stop” etc. to opt out of further text messages, entities that receive the opt-out often send a final text confirming receipt and effectuation of the opt-out. The ruling was requested – and sorely needed – in the face of several putative class actions, including some against such notable names as Twitter and American Express, brought on grounds that the confirmatory texts, coming after the consumer has already opted out, lacked the prior express consent necessary under the TCPA and FCC implementing rules for text-messaging.
The TCPA and FCC rules generally prohibit using automatic telephone dialing systems, or “autodialers,” to make non-emergency calls without prior express consent to, among others, mobile phones. The FCC has long held this prohibition encompasses both voice calls and text messages, including the very popular short message service (SMS) texts. Accordingly, before any entity can send a text message, whether for sales or noncommercial purposes, i.e., regardless of content, prior express consent must have been previously obtained from the prospective recipient(s). Such consented-to text messages generally allow recipients to opt out of future texts, and many companies, consistent with various industry guidelines and best practices, as endorsed by many consumer groups, send post-opt-out confirmatory texts to assure consumers that their opt-outs are received and will be honored.
This approach was followed for a time without much doubt or controversy until putative class actions claimed any text message sent after the consumer opted out, including those simply confirming the opt-out, lacked the necessary consent and thus violated the TCPA and FCC rules. Some courts dismissed these suits on grounds the prior express consent to receive texts in the first instance necessarily includes consent to a single follow-up text confirming that an opt-out was received. Other courts, however, denied motions to dismiss, allowing cases to go forward, paving the way for settlements and/or expensive litigation.
SoundBite, a company that provides text messaging services for many banks, utilities, and retailers, petitioned the FCC to clarify that opt-out confirmation text-messages do not violate the TCPA or FCC rules. It argued such texts do not originate from autodialers, and thus do not violate the TCPA/FCC prohibition regardless of consent, or lack thereof. It also urged that there is a “grace period” after the opt-out is received, to allow the receiving entity time to effectuate the request, during which interim period subsequent texts, including opt-out confirmations, are permissible until the opt-out is effectuated.
The FCC granted SoundBite’s request for clarification, but on a different rationale. It ruled solely on grounds that a text-message recipient who previously granted prior express consent, then opted out, consented broadly enough to allow the post-opt-out confirmatory text, even after the consent has been revoked. The declaratory ruling thus concludes 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 revocation of consent as long as certain conditions are met.
First, the Commission emphasized that the ruling applies only when the text-message sender had previously obtained prior express consent from the consumer to receive text messages using an autodialer. Further, confirmatory texts must merely confirm the opt-out and not include any marketing or promotional information, or attempt to convince the consumer to reconsider, and the confirmation must be the only additional text sent after the opt-out. In addition, confirmation texts must be sent within minutes of receipt of an opt-out request.
There were hopes within the industry that the Commission might take up SoundBite’s invitation to loosen the definition of “autodialer,” which in turn, as the FCC broadly construes it, imposes a fairly broad prohibition on texting without prior express consent. However, at several points, the FCC made clear it holds to its prior determination that text-messaging utilizes “autodialers,” as well as to its broad autodialer definition. It also underscored that the ruling “has no impact on the TCPA’s broad prohibition against sending autodialed text messages in cases where the sender has not obtained the consumer’s prior express consent in the first instance.”
Accordingly, while this is welcome relief – particularly for those still embroiled in, or threatened with, class actions over opt-out confirmation texts – the FCC’s ruling stands on the narrowest possible ground.