At the Federal Communication Commission’s (“FCC”) June 8 Open Meeting, the Commissioners voted to adopt a new Notice of Proposed Rulemaking (“Notice”) designed to clarify and expand upon the ability of consumers to decide what calls or texts subject to the Telephone Consumer Protection Act (“TCPA”) they wish to receive. The Notice addresses pending but unresolved petitions for declaratory rulings filed by a range of entities seeking clarification of a variety of TCPA policies. The Notice also highlights the agency’s intention to adopt specific rules codifying stated FCC policies contained in prior orders so that consumer rights are “clear” and easy to understand. Each of the areas addressed by the Notice could affect the compliance programs of callers and texters, and the Notice thus represents an opportunity to inform the FCC of practical consequences of its proposals before it acts to adopt new rules.
Revocation of Consent in “Any Reasonable Way”
In its 2015 Declaratory Ruling, the FCC stated that consumers who had provided prior express consent to receive autodialed or pre-recorded voice calls are free to revoke that consent through any reasonable means of notification to the calling or texting party. The Notice proposes to formally adopt a rule incorporating that flexibility and prohibiting calling or texting parties from designating any exclusive means to revoke consent. The proposed rule states that reasonable revocation methods “typically” include text messages, voicemail or email to any phone number or email address where the consumer “can reasonably expect” to reach the caller. The Notice calls out the use of “STOP” as a widely recognized means of revoking consent and proposes that the FCC employ a presumption that such a message, if sent, it is to be treated as a revocation of consent message. If text initiators do not allow or enable a reply to text function, then the FCC proposes that that entity be required to provide clear and conspicuous disclosure on each text as to how to revoke consent.
The Notice states that the scope of a “reasonable” means to revoke consent is not unlimited and the FCC seeks comment on any limitations commenters believe should be codified. The FCC proposes that callers who do not believe that consumers have used a reasonable method to convey a request to revoke consent should be afforded an opportunity to rebut the presumption on a case-by-case basis and seeks comment on the types of evidence sufficient to rebut the presumption. The Notice provides an example ‑ a consumer directs the request to a telephone number or email address, and the caller presents evidence that the consumer lacks a reasonable basis to expect that the request will be received by it. The Notice asks whether the FCC should hold that this attempted revocation of consent is not in fact reasonable.
Timeframe for Honoring a Do-Not-Call or Revocation Request
The Notice proposes to require that, within 24 hours of receipt, callers must honor company-specific do-not-call and revocation-of-consent requests for covered calls and texts – which are those subject to the TCPA. If adopted, that would represent a significant change of the FCC’s existing rules – which in many situations now require callers to honor do-not-call requests within a reasonable time not to exceed 30 days from the date of any such request – to a much shortened 24-hour timeframe. The FCC asks if a 24-hour period is reasonable or whether the agency should instead require that revocations be honored immediately upon receipt or, alternatively, apply some other timeframe.
Confirmation Text Message in Response to Revocation
In its Soundbite Declaratory Ruling, the FCC clarified that a one-time text message confirming a consumer’s request that no further texts be sent does not violate the TCPA or the FCC’s rules if the text merely confirms the opt-out request and does not include any marketing information, and the confirming text is the only additional message sent after receipt of the opt-out request. The Notice states that codifying this ruling would ensure that both text senders and recipients are aware of the option and seeks comment on the proposal.
The FCC also proposes to allow senders to include a request for clarification in the one-time confirmation text, provided the sender ceases all further covered calls and texts absent an affirmative response from the consumer. The FCC clarified that in its view, any lack of a response to the confirmation call or text must be treated by the sender as a revocation of consent for all covered calls and texts from the sender. This is relevant when a recipient has consented to receiving multiple categories of informational messages from a sender as there may be multiple categories of informational messages that a consumer may have consented to receive. In these situations, a revocation notification can be ambiguous as to whether the request applies to all or just certain types of messages. The proposed clarification request option is intended to be strictly limited to informing the recipient of the scope of the opt-out request to be implemented absent some further confirmation from the consumer that they wish to continue receiving certain categories of texts from the sender. The FCC seeks comment on this approach.
In all events, the FCC states that any confirmation texting would be limited to a final one-time text unless the consumer affirmatively responds that they wish to continue to receive certain categories of informational calls or texts from the sender. Without such a response, no further covered calls or texts would be permissible. The FCC proposes that any “STOP” text sent in response to the one-time request for confirmation would not then allow the text sender to transmit another request for further clarification.
Wireless Carrier Calls/Texts to Subscribers
Finally, the FCC revisits a prior determination from 1992 that wireless carriers need not obtain consent prior to initiating autodialed, artificial voice, or prerecorded voice calls to their own subscribers because such communications were not charged to the called party. After this ruling, Congress amended the TCPA to grant the FCC express statutory authority to exempt from the prior-express-consent requirement calls to wireless numbers that are not charged to the called party subject to such conditions as the FCC deems necessary to protect the privacy rights afforded under the TCPA. As a result of this timing, the FCC has not yet subjected wireless carriers to the conditions the FCC otherwise has adopted to protect consumer privacy rights that apply in analogous situations where callers have been granted an exemption to make covered calls or send covered texts to wireless numbers without prior express consent.
Two wireless subscribers have pending petitions (see here and here) seeking clarification that they can revoke consent to receive calls and messages from their wireless provider after such a request to stop such communications was denied by their wireless providers. Wireless providers opposed the petition, arguing that the TCPA’s prohibitions do not apply to communications from wireless providers to their customers because there is no charge to the subscribers for calls and messages to them. The wireless commenters contend there is no prior consent to be revoked.
Rather than maintain a blanket exemption for all wireless calls for which the subscriber is not charged, the FCC proposes to create a qualified exemption—under section 227(b)(2)(C)—for informational calls and texts from wireless providers to their subscribers. Specifically, these calls would be exempt from the prior-express-consent requirement only if certain conditions are satisfied. The FCC proposes conditions that are similar to those it has imposed in other situations where the FCC has recognized an exemption from the prior-express-consent requirement for covered calls to wireless telephone numbers. The proposed conditions are:
- voice calls and text messages are initiated by a wireless provider only to an existing subscriber of that wireless provider at a number maintained by the wireless provider;
- voice calls and texts must state the name and contact information of the wireless provider (for voice calls, these disclosures must be made at the beginning of the call);
- voice calls and texts must not include any telemarketing, solicitation, or advertising;
- voice calls and texts must be concise, generally one minute or less in length for voice calls or 160 characters or less in length for texts;
- a wireless provider may initiate a maximum of three voice calls or texts during any 30-day period;
- a wireless provider must offer recipients an easy means to opt out of future such messages within the message itself; voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call; voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls; text messages must inform recipients of the ability to opt out by replying “STOP”; and
- a wireless provider must honor opt-out requests immediately.
The Notice states that an exemption, coupled with the enumerated conditions, balances the privacy interests of the TCPA with the legitimate interests of wireless providers in communicating with their subscribers. The FCC observes that wireless providers are free to use a live agent or equipment that does not constitute an autodialer to make calls or send texts without running afoul of the TCPA. The Notice also highlights that wireless providers can always obtain the prior express consent of their subscribers to avoid the need to rely on this exemption and its accompanying conditions. The FCC seeks comment on these conditions and whether there are any benefits consumers receive from calls or messages that may be lost because of an opt-out or limit on the number of calls or messages sent.
Lastly, to the extent that there are any calls or texts that wireless service providers are mandated to make to their subscribers pursuant to any federal or state law, the FCC seeks comment on whether they should not be counted toward the numerical limit imposed in the 30-day timeframe. The agency seeks comment on this proposal, including any burdens this proposal may impose on wireless providers.
Conclusion
The proposals contained in the Notice, if adopted, would require that callers and texters revisit their existing TCPA compliance and other processes. The FCC’s stated goal of striking an appropriate “balance” between consumer privacy options and the ongoing and serious need to reach people by business and even non-commercial entities seems largely devoid of consideration of additional compliance costs or technical feasibility concerns. Public comments are due 30 days after a summary of the Notice is published in the Federal Register and reply comments are due 15 days thereafter. Interested parties should ensure the FCC record reflects their concerns.
