On February 15, 2024, The Federal Communications Commission (FCC) adopted new rules governing consumers’ ability to revoke their prior express consent (PEC) to receive calls and texts that was provided to a company in furtherance of the Telephone Consumer Protection Act (TCPA), and that alter the period in which a telemarketer must honor a consumer’s Do-Not-Call (DNC) request.
Prior Express Consent (PEC), Do-Not-Call (DNC), and the Telephone Consumer Protection Act (TCPA)
The TCPA prohibits unsolicited marketing calls and texts to cellular numbers and to numbers listed on the National DNC Registry, unless the caller has obtained prior express consent (PEC) from the called party or another recognized exemption applies. However, once PEC was granted, the TCPA was silent on whether it could ever be rescinded.
In 2015, the FCC addressed that silence by issuing a Declaratory Ruling stating that a called party who has provided prior express consent (PEC) may revoke consent at any time and through any “reasonable means” without providing further guidance on the matter. FCC rules also required that consumer Do-Not-Call requests must be honored within a reasonable time from the date the request was submitted, not to exceed 30 days from the date of the request.
In 2012, the FCC ruled that sending a one-time text message confirming a consumer’s “Stop” request does not violate the TCPA if the confirmation text complies with certain limitations, including that it not contain any marketing. In 2019, Capital One requested the FCC to issue a declaratory ruling stating that, if a consumer has consented to receive multiple types of informational messages from a sender and then revokes consent, the sender should be able to clarify the scope of the revocation in a one-time message without violating the TCPA.
The New Rules
In an effort to confer a greater degree protection from unwanted robocalls and robotexts, the new rules codify and provide more flexibility to consumers on how they can revoke prior express consent (PEC), shorten the period in which DNC requests must be honored, and addresses confirmation texts sent in response to consumer opt-out requests.
Prior Express Consent (PEC) Revocation
The FCC created a new rule that makes it clear that consumers have the right to revoke prior express consent (PEC) for autodialed or prerecorded or artificial voice calls and autodialed texts in any reasonable manner that clearly expresses a desire not to receive further calls or texts, and that callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.
The new rule also includes a standardized list of the specific words that may be used to revoke consent via a reply text message to ensure that automated systems can process the request. Specifically, any reply text that includes the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe,” constitutes a per se reasonable means to revoke consent.
However, the new rule does not preclude the use of other words and phrases to revoke consent. If a reply text contains words or phrases other than those listed above, and a dispute as to whether it qualifies as an opt-out request arises, the onus will be on the sender to explain why the consumer’s use of alternative words or phrases does not constitute a reasonable means to revoke consent.
Confirmation of Revocation
The FCC revised its rule clarifying that a one-time text message confirming an opt-out request does not violate the TCPA or FCC rules as long as the text merely confirms the opt-out request and does not include any marketing or promotional information, and the text 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 prior express consent (PEC) previously provided by the consumer. If it takes longer than five minutes, the sender will have to demonstrate that the delay was reasonable, and the longer the delay, the more difficult it will be to demonstrate that the confirmation message falls within the original prior consent.
The revised rule also allows senders who have been granted prior express consent (PEC) to send different categories of messages to a consumer to include a request for clarification in the one-time confirmation text, provided the sender ceases all further messages absent an affirmative response from the consumer.
