The Federal Communications Commission ("FCC") is in the process of evaluating whether to issue a declaratory ruling which would provide clarification on if and how companies are permitted to respond to consumer TCPA opt-out requests. Such guidance offers the promise of providing much needed certainty to businesses trying to more efficiently manage relationships with their customers.
What is being asked of the FCC with respect to the TCPA Opt-Out issue?
The FCC was asked to examine the scope of consumer TCPA opt-out requests by Capital One Services, LLC ("Capital One"). Capital One submitted a petition to the FCC seeking confirmation that the TCPA permits text message senders to clarify the scope of consumer opt-out requests through one-time follow-up confirmation text messages. Capital One was concerned that consumers who respond "Stop" to text messages informing them about a declined card transaction (for example) could be deprived of important information concerning their accounts or relationship with the bank if Capital One were forced to interpret "Stop" responses as a complete revocation of consent, rather than a revocation of consent as to a particular category of message.
Capital One's petition has subsequently been supported by a variety of industry groups representing businesses that rely on making calls and sending text messages to keep their customers informed on a variety of aspects of their respective relationships. Most, if not all, interested parties have expressed concerns presented by "Stop" responses received from consumers. Specifically, the conundrum breaks down as follows: either businesses deprive consumers of information that they might use to make informed decisions about the business' products or services by interpreting such responses as the wholesale revocation of TCPA consent, or businesses risk exposure to TCPA liability through continued messaging to consumers by interpreting "Stop" messages as more narrowly applying to the category of message to which they were directed.
Readers of this blog will recall that the FCC has spent the better part of the last three years engaging in a broad effort to reexamine various aspects of the TCPA following the D.C. Circuit's ruling in ACA International. On the TCPA out-out issue in particular, industry groups are hopeful that the FCC will act quickly to provide sought-after clarification. The FCC may ultimately oblige by taking a narrower approach to guidance on the TCPA rather than issuing an omnibus declaratory ruling on the scale of the erstwhile 2015 Order. However, it turns out, interested members of the industry are advised to keep a watchful eye out for potentially imminent and useful FCC action.
Protecting Against Liability After a TCPA Opt-Out
Marketers require certainty when it comes to complying with applicable telemarketing laws, rules and regulations governing their advertising campaigns. Guidance from the FCC, through an anticipated declaratory ruling, on how it interprets the scope of the TCPA's consent provisions will be especially helpful to the compliance practices of those operating in the telemarketing space. In the current regulatory climate, the cost of misinterpreting a consumer's "Stop" response to a text message can be financially devastating. Consequently, until such time as the FCC does issue such guidance, it is imperative that marketers work closely with experienced telemarketing attorneys to review all practices and procedures prior to launching any campaign.
If you need to review your telemarketing practices and procedures, please e-mail us at email@example.com, or call us at (212) 246-0900.
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Originally Published by Klein Moynihan, December 2020
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