On June 9th, 2023, the Federal Communication Commission (FCC) proposed new requirements concerning the revocation of consent to receive both robocalls and robotexts. The Notice of Proposed Rulemaking (NPRM) also seeks to clarify callers’ obligations under FCC rules to honor revocation requests in a timely manner.
Changes the FCC Proposed to set forth in the NPRM
- 24-Hour Period to Honor Revocation Requests: The NPRM states that companies should honor requests to stop calling or texting within 24 hours of receiving the request. At present, companies must honor such requests within a “reasonable period” or within 30 days, depending on the nature of the call. The FCC argues that advancements in technology, including automated and interactive technologies, justify a 24-hour timeframe.
With the proposed 24-hour rule, the Commission will need to ensure that the method chosen by the consumer to transmit their request will enable companies to act upon it within the 24-hour time frame. This could pose challenges even when companies have automated systems in place for near immediate action when consent is revoked. For instance, if a call or text is received on a Friday afternoon using a medium considered "reasonable" but not one that is automated, a company could miss the 24-hour deadline. - Revocation by Any Reasonable Means: In 2015, the FCC clarified that consumers may revoke consent through “any reasonable means,” and that companies may not designate an exclusive method of revocation. The FCC's determination was upheld on appeal despite concerns that consumers may seek to revoke consent using methods that are difficult to track, such as informing a sales clerk at a retail location. The FCC proposes to codify the "by-any-reasonable-means" requirement in its rules. 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."
- One-Time Text Confirming Revocation: In its 2012 Soundbite Declaratory Ruling, the FCC concluded that companies may send one text confirming revocation without violating the TCPA as long as the text does not include marketing material. However, 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. Thus, the NPRM 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.
Exemptions
- The exemptions for calls and texts made by wireless carriers have been updated to include limitations on frequency and the addition of rights to opt-out.
- The NPRM also includes exemptions for certain types of calls, such as fraud alerts or health notifications. Requests to opt-out of such messages must be implemented "immediately." The Commission does not propose changing this requirement and extends it to package delivery notifications and wireless company calls to its subscribers. This specified timeframe 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, which are all closer to a 30-day window. Nonetheless, many companies already have systems that take immediate action once consent is revoked for calls or texts.
Comments on the FCC Proposal
Comments on the FCC'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.
Conclusion
In the digital age, it's more important than ever for businesses to respect the communication preferences of their customers. Understanding and adhering to the Telephone Consumer Protection Act and the rules promulgated by the FTC and FCC to enforce it, is crucial for this. The Blacklist Alliance, is committed to helping businesses stay compliant and avoid unnecessary litigation.
