The Telephone Consumer Protection Act (“TCPA”) and implementing rules by the Federal Communications Commission (“Commission”) bar many types of calls or texts without first having obtained the consent of the called party. Consumers also have the right to revoke that consent. Over the years, the Commission has issued various rulings on how consumers can revoke consent and how companies must act on those requests. The Commission recently proposed some new requirements on companies as well as codifying previous rulings into the Commission’s official rules. The proposals can be found here. Following is a summary of the key proposals.
Honor Revocation Requests Within 24 Hours of Receipt. The Commission proposes to require companies to honor a consumer’s request to stop calling or texting within 24 hours of receiving the request. Currently, companies must honor such requests either within a reasonable period of time or within 30 days depending on the type of call. The Commission states that changes in technology, including automated and interactive technologies, justify a 24-hour time frame. The Commission has also exempted certain types of calls from the TCPA’s consent requirement, such as fraud alerts or health notifications. Requests to opt-out of such messages must be implemented “immediately.” The Commission does not propose changing that requirement and extends it to package delivery notifications and wireless company calls to its subscribers. For financial services industry callers, this specified time frame is more stringent than other time requirements related to opt-outs, such as in Regulation F, the E-Sign Act, and the Gramm-Leach-Bliley Act, to name a few, which are all closer to the 30-day window. However, many companies already have systems in place that take immediate action once consent is revoked for calls or texts.
Revocation by Any Reasonable Means. In 2015, the Commission clarified that consumers may revoke consent through any reasonable means and that companies may not designate an exclusive means of revocation. The Commission’s determination was upheld on appeal despite concerns that consumers may seek to revoke consent by, for example, informing a sales clerk at a store. The Commission proposes to codify the “by-any-reasonable-means” requirement in its rules and that reasonable methods include texting, voicemail or email to “any telephone number or email address at which the consumer can reasonably expect to reach the caller.” Coupled with the 24-hour rule described above, the Commission will need to ensure that the method chosen by the consumer is one that enables the company to act on the request within that time frame. This is where there could be issues even when companies have automated systems in place for near immediate action when consent is revoked. For example, if a call or text is received on a Friday afternoon using a medium considered “reasonable” but not one that is automated, it is possible a company could miss the 24-hour deadline.
Companies May Send One Text Confirming Revocation. In its 2012 Soundbite Declaratory Ruling, the Commission concluded that companies may send one text confirming revocation without violating the TCPA as long as the text does not include marketing material. The Commission proposes to codify this finding. In some instances, consumers may have consented to receive communications relating to various types of information and it may be unclear whether a revocation applies to one or all of those categories. The Commission proposes that a company may ask for clarification on the scope of the revocation in the one-time confirmation message. If the consumer fails to respond, the company must assume that the consumer’s revocation applies to all robocalls or robotexts.
Next Steps. Comments on the Commission’s revocation proposals will be due 30 days after the proposal is published in the Federal Register and reply comments will be due 45 days after publication. The failure to honor opt-out or revocation requests is a common source of TCPA litigation. Companies may wish to review these proposals closely and assess their ability to comply, particularly with the proposal to honor revocation requests within 24 hours of receipt.
This document is intended to provide you with general information regarding proposed rules by the Federal Communications Commission. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.
The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.