The Federal Communications Commission (“FCC”) released an eagerly anticipated ruling taking the position that a company does not violate the Telephone Consumer Protection Act (“TCPA”) by sending a “confirmation text” to a consumer confirming that the consumer’s opt-out request has been received. Coupled with court decisions that have reached the same result, the FCC’s November 29, 2012 ruling should effectively put to rest several class actions where consumers seek substantial damages for the apparent annoyance of receiving a text message simply confirming that their request not to receive further text messages had been received and would be honored.
While the ruling is a welcome result for the telemarketing industry, the FCC attempted to limit its decision by way of: (a) the rationale it adopted to reach the holding and (b) the specific procedures it delineated for companies to follow when sending such final opt-out confirmations.
In its February 16, 2012 petition, SoundBite, the petitioner who sought the FCC ruling, requested the FCC to declare that confirmation texts do not violate the TCPA because SoundBite does not use an “autodialer” to send such texts or, in the alternative, because companies should be given a certain grace period within which to act upon a consumer’s opt-out request. The FCC, however, declined to base its ruling on either justification. Instead, the commission held that consumers implicitly consent to receive one final opt-out confirmation text when they initially provide their express consent to receive autodialed text messages. The FCC further noted that, given today’s prevalence of unlimited texting plans, many consumers incur no monetary charges for final confirmation text messages. Moreover, even for those customers who are charged or inconvenienced by final confirmation messages, the benefit of knowing that their request not to receive further text messages has been processed outweighs any burden the last message might impose.
Rationale aside, the FCC also took the opportunity to clarify that, at least in its view, a telemarketing company’s right to send a confirmation message is not unlimited. To begin with, there can only be one final message. A company cannot continue to send further messages and, presumably, cannot send a series of messages advising that the consumer’s opt-out notice has been received. Second, while the final message may confirm that the consumer’s request has been received and will be honored (and may even contain contact information and instructions on how to opt back in), the message cannot include any additional marketing, solicitation or promotional language. Third, the confirmation message must be sent promptly. If a message is sent within five minutes of the opt-out request, the FCC will presume it to fall within the consumer’s express consent. If, however, the message is sent beyond the five-minute window, the presumption will not apply and the burden will fall on the telemarketing company to explain why the additional delay was reasonable.
Whether persuaded by logic and fairness, or the decisions of courts that have already reached the same result, the FCC made the correct decision in holding that the TCPA does not bar a simple text message informing a consumer that his or her opt-out request has been received and will be effected. But only time will tell whether the FCC’s rationale will lead to additional similarly justified expanded interpretations of prior express consent. After all, in choosing to hold that a consumer’s express consent encompasses an unstated component, the FCC recognized and acknowledged that consent is often broader than it initially appears. Defense counsel should be keenly aware of the FCC’s recognition of this fact when litigating consent-based defenses.