On February 15, the Federal Communications Commission (FCC or “the Commission”) adopted a Report and Order and Further Notice of Proposed Rulemaking (“the Order”) pursuant to the Telephone Consumer Protection Act (TCPA) that contains new rules pertaining to companies’ use of robocalls and robotexts. Most notably, the Order clarifies how consumers can revoke their consent to receive robocalls and robotexts and imposes new requirements regarding the timeframe within which companies must respond to consent revocations.
Companies that engage in robocalling and robotexting should pay careful attention to the Order’s new requirements. The TCPA requires that companies obtain a consumer’s “prior express consent” before sending them robocalls or robotexts, subject to certain exceptions. And the TCPA provides a private right of action that allows individuals to obtain the greater of actual monetary loss or $500 for each violation of the Act (with treble damages available for knowing or willful violations). Moreover, as we have previously written, 2023 saw an increase in TCPA-related litigation, indicating that the Act remains fertile ground for potential legal claims. Thus, noncompliance with TCPA consent requirements has the potential to impose severe consequences on companies.
In this post, we summarize key elements of the FCC Order. To stay up-to-date on the latest developments in the TCPA legal landscape, please subscribe to the WilmerHale Privacy and Cybersecurity Law Blog.
Key Provisions
The Order contains the following key provisions.
1. Revoking Consent Through “Reasonable” Means. The Order codifies the right of consumers to revoke their consent to receive robocalls and robotexts by “any reasonable manner that clearly expresses a desire not to receive further calls or text messages.” The FCC goes on to provide a few examples of such “reasonable” means, including, for instance, using opt-out mechanisms provided on robocalls (e.g., a key press-activated opt-out), responding “stop” to a text message, or submitting an opt-out via a designated website or telephone number. However, the Commission makes clear that that list of examples is not exhaustive. Indeed, the FCC clarifies that, if a consumer revokes their consent through a method other than one enumerated in the Order, a rebuttable presumption is created “that the consumer has revoked consent, absent evidence to the contrary.” The Order further specifies that companies may not limit consumers to revoking their consent through a single “exclusive means.”
With regards to text message opt-outs, specifically, the Order identifies several words that constitute a reasonable method for revoking consent, including: “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe.” Again, however, the Commission cautions that consumers can revoke their consent through other words, as well. When a consumer uses a different word to revoke consent via text, the Order states that the FCC or a court “will conduct a totality-of-circumstances analysis” to determine whether that word constitutes a “reasonable” method of revoking consent.
2. 10-Business Day Timeframe for Honoring Do-Not-Call and Consent Revocation Requests. The Order amends the TCPA rules to require that companies process do-not-call and revocation-of-consent requests from consumers “as soon as practicable and no more than 10 business days after receipt of the request.” Notably, the Order makes clear that the 10-business day timeframe is intended as a “backstop” and that, in many cases, “as soon as practicable” should mean a “swift” response, especially given “the availability of automated means to process revocation requests.”
3. Post-Revocation Communications. The Order provides clarification in two areas related to situations in which a company may communicate with a consumer after the consumer’s revocation of consent. First, the Order codifies a prior declaratory ruling holding that companies may send consumers a one-time, post-revocation text message confirming the consumer’s revocation request. However, companies must ensure that this message “merely confirms the [consumer’s] opt-out request and does not include any marketing or promotional information.” Second, the Order establishes that companies may include in the aforementioned one-time post-revocation text message a request for clarification on the scope of the opt-out in situations where the consumer has consented to multiple types of text messages (e.g., where a bank customer receives both fraud alerts and payment notices via text message).
4. Effective Date. The amended rules will take effect six months after publication in the Federal Register of “notice that [the Office of Management and Budget, or OMB] has completed any required review of the adopted rules.” Because of the need for OMB to review the rules, the Commission notes that the actual timeframe before the rules become effective will be longer than six months.
5. Further Rulemaking Regarding Wireless Providers. The FCC’s publication also includes a Further Notice of Proposed Rulemaking seeking comments on how the TCPA’s robocall and robotext consent requirements should apply to wireless providers’ communications with their customers. Essentially, the Commission proposes to clarify that the TCPA’s consent requirements apply in this context and that wireless subscribers should thus have the right to opt-out of certain robocalls and robotexts sent by their wireless provider.
