
On April 4, 2024, the Federal Communications Commission (“FCC”) adopted new rules updating the Telephone Consumer Protection Act’s (“TCPA”) requirements regarding a consumer’s ability to revoke consent to receive calls and messages (collectively “messages”). Generally speaking, the TCPA in part restricts messages sent using an automated telephone dialing system absent the organization obtaining the necessary prior consent from the consumer. Importantly, the rules (1) further clarify the ways in which a consumer may revoke consent; (2) require that organizations honor requests within a reasonable time; and (3) clarify the process by which organizations can confirm the scope of a consumer’s request to revoke consent to receive further messages. We unpack these key developments in more detail below.
Callers Can Attempt To Clarify the Scope of an Opt-Out Request
Until now, if an organization had multiple messaging programs (e.g., billing, transaction receipts, appointment reminders, promotional offers, surveys, etc.), and the recipient responded with an unqualified “STOP,” it was unclear whether the organization could send an additional message asking for clarification as to the scope of the opt-out request (i.e., which types of messages the recipient wanted to opt-out from).
In 2019, Capital One filed a petition with the FCC requesting a declaratory ruling that, businesses who receive a “STOP” message from a consumer who has consented to receive multiple types of informational messages should be able to clarify the scope of the revocation in a one-time message without violating the TCPA.
Nearly five years later, in direct response to Capital One’s petition, these new rules clarify that an organization can send a one-time message confirming a consumer’s request that no further messages be sent without violating the TCPA, as long as the confirmation message merely confirms the scope of the recipient’s opt-out request and does not include any additional marketing information. In other words, the organization can seek clarification on the scope of the recipient’s opt-out request (e.g., opting out of promotional offers but continuing to receive all other message types).
It is important to note, however, that if the consumer does not further qualify the scope of their opt-out request, then the organization must treat that as a broad opt-out request, effectively revoking consent to receive any further messages from that sender. The FCC stated, “The lack of any response to the confirmation text must be treated by the sender as a revocation of consent for all robocalls and robotexts from the sender.” These rules provide helpful guidance to organizations in ensuring that their customers and other messaging recipients continue to receive the communications that they would like to continue receiving.
Lastly, the new rules require the confirmatory message to be sent within five minutes of the opt-out request, and the message cannot contain any marketing or advertising content or seek to persuade the recipient to reconsider their communication preference. This portion of the new rules took effect on April 4, 2024.
Clarification on Consumers’ Options to Revoke Consent
In a 2015 Declaratory Ruling and Order by the FCC, the Commission clarified that under the TCPA, a consumer may revoke consent at any time and through any “reasonable means.” Many stakeholders requested further clarification as to the methods that are considered “reasonable” for a consumer to revoke consent. In response, the FCC also adopted a new rule clarifying that “any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a robocall; via a response of ‘stop’ or a similar, standard response message sent in reply to an incoming text message; or submitted at a website or telephone number provided by the organization to process opt-out requests constitute examples of a reasonable means to revoke consent.” Similar keywords include “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe.”
Organizations sending automated messages should ensure that the dialing systems they are using detect these keywords, both on a standalone basis as well as part of a longer string of text—e.g., a message[LH1] that reads “I asked to be removed from this service a few times. Stop the messages,” which is how some plaintiffs have tried to trick organizations into sending further messages after an attempt to opt-out.
If a recipient uses any such method to revoke consent, that consent is considered definitively revoked, and the sender may not send additional messages (other than the confirmatory message permitted above). If a reply to an incoming message uses words other than “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe,” the sender must treat that reply text as a valid revocation request if a reasonable person would understand those words to have conveyed a request to revoke consent. This new rule is instructive to show the breadth of the different ways in which a recipient can revoke consent.
Lastly, the new regulations also include a requirement to honor entity-specific do-not-call and revocation requests as soon as practicable but not more than 10 business days after receiving the request.
Conclusion
The FCC continues to refine its rules related to the TCPA, and organizations using automated dialing systems to communicate with consumers, employees, or other individuals should pay close attention to these changes and potential subsequent actions by the FCC and Congress to modernize the TCPA. The Ropes & Gray team will continue to monitor for additional updates to the TCPA rules that will likely be finalized at the end of this year.