On March 5, 2024, the Federal Communications Commission (FCC) published a final rule in the Federal Register to “clarify and strengthen” a consumer’s right to revoke consent to receive robocalls and robotexts under the Telephone Consumer Protection Act (TCPA). The rule reflects several changes requested by America’s Credit Unions during its engagement with the FCC on the subject. See Revocation of consent rule addresses credit union concerns.
Although the final rule is effective on April 4, 2024, the new consent revocation provisions, and the timeframe for honoring these requests, will be effective six months following review by the Office of Management and Budget (OMB). The FCC will publish a Federal Register announcement once the effective date has been established.
For background, so that we are all on the same page: the TCPA restricts calls and text messages made using an “automatic telephone dialing system” or an artificial or prerecorded voice (so-called “robocalls” or “robotexts”), absent the prior express consent of the called party or a recognized exemption.
- Prior express written consent is required for telemarketing robocalls to residential landlines. These calls must also be accompanied by an automatic interactive opt-out mechanism for consumers to opt-out of future automated messages.
- Prior express written consent is required for telemarketing robocalls/texts to wireless numbers. However, consent may be oral or written for non-telemarketing (informational) calls/texts.
- There are exemptions from the consent requirement for certain categories of informational robocalls/texts (e.g., calls/texts to wireless numbers for fraud alerts, security breach notifications, or actions needed to arrange for the receipt of a pending wire transfer). Instead, the caller/texter is required to comply with specific conditions, including number and frequency limits (e.g., exempt calls/texts to wireless numbers limited to no more than 3 messages per event over a 3-day period for an affected account).
Revoking Consent in Any Reasonable Manner
In this most recent final rule, the FCC codifies its previous findings that revocation of consent (i.e., opting out of robocalls/texts) can be made in any “reasonable” manner that clearly expresses a desire not to receive further calls or text messages; and that callers/texters cannot designate an exclusive means for requesting revocation of consent. Nevertheless, a revocation request made using the following methods will be considered “definitively revoked by a reasonable means”:
- An automated, interactive voice or key press activated opt-out mechanism on a robocall;
- A response of “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” sent in reply to an incoming text message; or
- Submitted at a website or telephone number provided by the caller to process opt-out requests constitute examples of a reasonable means to revoke consent.
A consumer can still use any other reasonable means to revoke consent. Should a dispute arise, “a totality of circumstances analysis” will determine whether the caller/texter can demonstrate that a request to revoke consent has not been conveyed in a reasonable manner.
What about exempt calls/texts? The revocation of consent request applies only to those robocalls/texts for which consent is required under the TCPA. However, a revocation request made directly in response to an exempt informational call or text (like a fraud alert or security breach notification) will constitute an opt-out request from the consumer and all further robocalls/texts must cease.
Timeframe for Honoring a Do-Not-Call or Revocation Request
The final rule requires that “robo-callers/texters” honor do-not-call and consent revocation requests “as soon as practicable,” and no longer than 10 business days from receipt. This is a major win for credit unions since the proposed rule would have required callers to honor revocation requests within 24 hours. Prior to the transformation to America’s Credit Unions, both NAFCU and CUNA had written to the FCC opposing a 24-hour timeframe for honoring opt-out requests and advocating for a longer timeframe.
Revocation Confirmation Text Message
The final rule codifies the FCC’s position that a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA — as long as the text only confirms the called party’s opt-out request and does not include any marketing information.
If the confirmation text is sent within 5 minutes of receipt, it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, the more difficult it will be to demonstrate that the message falls within the original prior consent.
Senders can include a request for clarification in this one-time confirmation text when a text recipient has consented to several categories of text messages from the text sender, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer. The sender must treat the lack of any response to the confirmation text as a recipient’s revocation of consent for all further robocalls/texts.
Other Rulemaking
The FCC also seeks comment on whether the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and the ability of these consumers to revoke consent and thereby stop these communications. Comments are due on or before April 4, 2024, and reply comments are due on or before April 19, 2024.
Stay tuned for further TCPA developments.
Resources
Click here for the Federal Register Notice: Strengthening the Ability of Consumers to Stop Robocalls (3/5/24).
In case you missed it (ICYMI), see the blog post: TCPA One-to-One Consent Rule, Effective January 2025 (2/8/24)