FCC issues final rule on revocation of consent for robocalls and robotexts

The Federal Communications Commission (FCC) has issued a final rule amending its regulations implementing the Telephone Consumer Protection Act (TCPA) to add new provisions addressing how consumers may revoke consent to receive autodialed or prerecorded voice calls or texts and the obligations of callers and texters to honor revocation of consent requests.

While the FCC generally asserts that these requirements are merely a codification of existing requirements, the new provisions could require significant operational changes. The new provision on revocation of consent confirmation messages is effective 30 days after publication of the final rule in the Federal Register. The new provisions on revocation of consent and the timeframe for honoring revocation of consent requests will be effective six months following publication in the Federal Register of a notice indicating that the Office of Management and Budget has completed any required review of the final rule.

Revocation of Consent. The final rule provides:

• Consumers may revoke prior express consent, including prior express written consent, to receive robocalls and robotexts by using any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender. Callers or senders of text message may not designate an exclusive means to request revocation of consent.
• Any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; using a response of “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” sent in reply to an incoming text message; or submitted at a website or telephone number provided by the caller to process opt-out requests constitute examples of a reasonable means to revoke consent. If a called party uses any such method to revoke consent, the consent is considered definitively revoked and the caller or sender may not send additional robocalls or robotexts.
• If a reply to an incoming text uses words or phrases other than those listed above, the sender must treat the reply text as a valid revocation request if a reasonable person would understand those words to have conveyed a request to revoke consent.
• If a text initiator uses a texting protocol that does not allow reply texts, the text initiator must (1) provide a clear and conspicuous disclosure in each text to the consumer that two-way texting is not available due to technical limitations of the texting protocol, and (2) clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent. (In its discussion of the final rule, the FCC uses a telephone number, website link, or instructions to text a different number to revoke consent as examples of “alternative ways.”)
• When a consumer uses a method to revoke consent not listed in the regulation, such as a voicemail or email to any telephone number or email address intended to reach the caller, a rebuttable presumption is created that the consumer has revoked consent when the called party satisfies their obligation to produce evidence that such a request has been made, absent evidence to the contrary. When a consumer has demonstrated that they have made a revocation request and the caller disputes that the request has been made using a reasonable method, a totality of circumstances analysis will determine whether the caller can show that revocation request has not been made in reasonable manner.

In its discussion of the final rule, the FCC indicates that when consent is revoked in any reasonable manner, the revocation extends to both robocalls and robotexts regardless of the medium used to communicate the revocation. In other words, the FCC states that “consent is specific to the called party and not the method of communication used to revoke consent.” For example, if the consumer revokes consent using a reply text message, consent is deemed revoked not only for further robotexts but also for robocalls from the same caller.

Revocation of consent confirmation text messages. The final rule provides:

• A one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA, provided the confirmation text only confirms the opt-out request and does not include any marketing or promotional information, and is the only additional message sent to the called party after receipt of the opt-out request.
• If the confirmation text is sent within five minutes of receipt, it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, the sender will have to make as showing that the delay was reasonable.
• If the text recipient has consented to several categories of text messages from the sender, the confirmation message can request clarification as to whether the revocation request was meant to cover all categories of messages from the sender. The sender must cease all further robocalls and robotexts for which consent is required absent an affirmative response from the consumer that they do wish to receive further communications from the sender.

Timeframe for honoring revocation of consent requests. The final rule provides:

• A request to revoke prior express consent or prior express written consent made in any reasonable way must be honored within reasonable time not to exceed ten business days from receipt of such request.
• Package delivery companies must offer package recipients the ability to opt out of future delivery notification calls and messages and honor an opt-out request within a reasonable time from the date of the request, not to exceed six business days.

NPRM for Wireless Providers’ Text Messages. In addition to the Order, the FCC is seeking comment on whether the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and, as a result, such providers must have consent to make prerecorded voice, artificial voice, or autodialed calls or texts to their subscribers.