At its most recent open meeting on February 15, 2024, the Federal Communications Commission (FCC or Commission) voted unanimously to adopt yet another round of rule changes related to the Telephone Consumer Protection Act (TCPA). These rule changes, focused on expanding consumers’ ability to revoke consent to receive calls and texts, build on the FCC’s other recent TCPA actions – namely the adoption of a one-to-one consent requirement, and a ruling that calls to consumers using artificial intelligence technologies are considered “artificial or prerecorded” messages subject to regulation under the TCPA.

The specific rule changes address three issues related to revocation of consent, explained in more detail below. The item also includes a further notice of proposed rulemaking on whether the TCPA applies to autodialed or artificial/prerecorded voice calls or texts from wireless providers to their own subscribers, as well as a possible mandate for an automated opt-out mechanism on every call that contains an artificial or prerecorded voice.

The timing for implementation of the rule changes is unclear at this point, because most of them will be delayed until six months after completion of a review by the Office of Management and Budget (OMB).

Nevertheless, these new requirements should be reviewed carefully, including through consultation with counsel, to prepare for the upcoming changes. For example, businesses will need to review their internal processes and modify them as appropriate to ensure that they are properly processing opt-out requests, and may need to develop new methods for honoring non-standard language opt-outs, as well as update training and compliance materials to adhere to the new requirements.

A general note for readers: Throughout this post, you’ll see the term “robocall” and “robotext” when we quote from the order. To be clear, the TCPA, and therefore the FCC’s regulatory authority, is limited to autodialed and/or artificial/prerecorded voice calls and texts.

Changes to the Revocation of Consent Rules

1. “Reasonable” Means of Revoking Consent

The order codifies the FCC’s longstanding position that a called party may revoke consent “by using any reasonable method.” This “reasonable method” standard was established in a 2015 declaratory ruling that was the subject of vigorous litigation, including on the issue of revocation of consent, which was ultimately upheld by the U.S. Court of Appeals for the D.C. Circuit.

To provide further clarification on what constitutes a “reasonable” means of revoking consent, the FCC put forth the following specific requirements:

“Any revocation request made using an automated, interactive voice or key press-activated opt-out mechanism on a call; using the words ‘stop,’ ‘quit,’ ‘end,’ ‘revoke,’ ‘opt out,’ ‘cancel,’ or ‘unsubscribe’ sent in reply to an incoming text message; or pursuant to a website or telephone number designated by the caller to process opt-out requests constitutes a reasonable means per se to revoke consent.”
“If a reply to an incoming text message uses words other than ‘stop,’ ‘quit,’ ‘end,’ ‘revoke,’ ‘opt out,’ ‘cancel,’ or ‘unsubscribe’ the caller 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.”
“Should the text initiator choose to use a texting protocol that does not allow reply texts, it must provide a clear and conspicuous disclosure on each text to the consumer that two-way texting is not available due to technical limitations of the texting protocol, and clearly and conspicuously provide on each text reasonable alternative ways to revoke consent.”

Callers will not be permitted to “designate any exclusive means to request revocation of consent,” and will be required to honor revocations made in a reasonable manner within 10 business days of receipt of the request.

If a consumer attempts to revoke consent using a method or language other than what is prescribed in the rules, or in the event of a dispute, the order establishes a standard of review based on the “totality of circumstances,” but there is a “rebuttable presumption” that the consumer has properly revoked consent if the consumer can “produce evidence that such a request has been made.”

2. Confirmatory Opt-Out Texts

The order also codifies a previous FCC determination that a “one-time text message confirming a request to revoke consent from receiving any further calls or text messages does not violate [the TCPA] as long as the confirmation text merely confirms the text recipient’s revocation request and does not include any marketing or promotional information, and is the only additional message sent to the called party after receipt of the revocation request.” In general, the order requires the confirmatory text to be sent within 5 minutes of receipt of the opt-out request, or “the sender will have to make a showing that such delay was reasonable.”

Additionally, the as-written rule provides that “[t]o the extent that the text recipient has consented to several categories of text messages from the text sender, the confirmation message may request clarification as to whether the revocation request was meant to encompass all such messages; the sender must cease all further texts for which consent is required absent further clarification that the recipient wishes to continue to receive certain text messages.” The above language only contemplates clarifying text message opt-outs, and in the order, the FCC states it intent to “limit this opportunity to request clarification to instances where the text recipient has consented to several categories of text messages from the text sender” and that “this rule will give consumers an opportunity to specify which types of text messages they wish to no longer get.” However, the FCC in the next sentence states that the “request for clarification can seek confirmation that the consumer wishes to opt out of all categories of messages from the sender, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer that they do, in fact, wish to receive further communications from the sender.” This arguably could encompass both voice calls and text messages.

Finally, “the timing of the confirmation text does not impact the obligation to honor the revocation within [10 business days after receipt of the request].” And a “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.”

The order makes clear that an opt-out message cannot attempt to persuade the recipient to reconsider their decision to opt-out. But one can look back at prior FCC statements on confirmatory opt-out messages and learn that FCC has previously suggested that “confirmation texts that include contact information or instructions as to how a consumer can opt back in fall reasonably within consumer consent.”

[Note: This particular rule change will not be subject to an OMB review, and is expected to become effective 30 days after the order is published in the Federal Register. While publication time can vary from a few days to a few weeks, affected parties should be prepared for this rule to go into effect as early as the end of March 2024.]

3. Scope of Revocation of Consent

The order acknowledges that certain types of calls and texts do not require consent, and clarifies that “when a consumer revokes consent with regard to telemarketing robocalls or robotexts, the caller can continue to reach the consumer pursuant to an exempted informational call, which does not require consent, unless and until the consumer separately expresses an intent to opt out of these exempted calls.”

It explains that “[w]here the consumer has revoked consent in response to a telemarketing call or message, it remains unclear whether the consumer has expressed an intent to opt out of otherwise exempted informational calls absent some indication to the contrary. … If the revocation request is made directly in response to an exempted informational call or text, however, this constitutes an opt-out request from the consumer and all further non-emergency robocalls and robotexts must stop.”

Additionally, “when consent is revoked in any reasonable manner, that revocation extends to both robocalls and robotexts regardless of the medium used to communicate the revocation of consent. For example, if the consumer revokes consent using a reply text message, then consent is deemed revoked not only to further robotexts but also robocalls from that caller.”

Further Notice of Proposed Rulemaking

In addition to adopting the rule changes outlined above, the item adopted at the open meeting also includes a further notice of proposed rulemaking (FNPRM) to seek comment on two issues. First, the FCC asks whether autodialed and/or artificial/prerecorded voice calls and texts from wireless providers to their own subscribers are subject to the TCPA. The FNPRM suggests the FCC thinks the answer is “yes,” which in turn leads to questions about whether a wireless carrier would have to get specific consent to send autodialed or prerecorded calls or messages to their customers or whether they “satisfy any TCPA consent obligation pursuant to the unique nature of the relationship and service that they provide to their subscribers.” The FCC then asks whether such consent based on that relationship would extend to calls and texts that contain telemarketing or advertisements. The FNPRM also proposes “that wireless subscribers, as any other called party, be able to revoke such consent by communicating a revocation of consent request to their wireless provider and that such request must be honored.” Second, the Commission seeks comment on a proposal by the National Consumer Law Center to “require an automated opt-out mechanism on every call that contains an artificial or prerecorded voice.”

Initial comments in response to the further FNPRM will be due 30 days after the item is published in the Federal Register, and reply comments will be due 45 days after publication.

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If you have any questions about how these changes may affect your business, or are interested in filing comments, please reach out to Alysa Hutnik or Jenny Wainwright. You can also hear more about this order on Kelley Drye’s Full Spectrum podcast. For more telemarketing updates, please subscribe to our blog.

FCC Adopts Changes to TCPA Consent Revocation Rules