FCC Proposes Additional TCPA Calling, Texting Restrictions

At its June 8, 2023 Open Meeting, the Federal Communication Commission (FCC) adopted a Notice of Proposed Rulemaking (Notice) aimed at clarifying and strengthening consumers’ ability to grant or revoke consent to receive robocalls and robotexts, while at the same time clarifying callers’ obligations under FCC rules to timely honor consumers’ requests. The FCC also expressed its intent to codify its past guidance on “prior express consent” in order to make Telephone Consumer Protection Act (TCPA) requirements clearer. Read on to see what may be coming down the pike.

Opt-out Confirmation Texts

Since 2012, callers have been permitted under the TCPA to send consumers a single, one-time text message to confirm that consumer’s request to receive no additional text messages. The FCC proposes to codify this rule so long as the confirmation text merely confirms the opt-out request and includes no marketing or promotional information. The FCC further proposes the one-time confirmation text may include a request for clarification of the scope of the consumer’s opt-out where the consumer has consented to receiving multiple categories of informational messages from the sender, so long as the sender ceases all further robocalls and robotexts absent further clarification from the consumer. The FCC proposes that a “STOP” text message sent in response to a request for clarification does not allow additional requests from the sender.

Revocation of Consent

The FCC seeks to codify its 2015 ruling that consumers who have provided prior express consent to receive robocalls and robotexts may revoke their consent through any reasonable means, and that callers may not designate an exclusive means of revocation would materially impair consumers’ right of revocation. Further, the FCC proposes codifying that “reasonable methods” of revocation include text message, voicemail, or email to any telephone number or email address where the consumer can reasonably expect to reach the caller and, further, that a reply to a text message with the word “STOP” or a similar message that conveys the desire to receive no further text messages creates a rebuttal presumption that consent has been revoked.

The FCC also proposes that Callers who utilize texting protocols that do not allow replies will bear the risk of liability under the TCPA unless each of its text messages clearly discloses that two-way texting is unavailable and provides alternative methods of revocation. Callers who believe that consumers have not utilized a reasonable method of revocation will be given an opportunity to rebut the presumption on a case-by-case basis if a complaint is filed with the FCC or with the finder of fact. The FCC seeks comment on the types of evidence that would suffice to rebut the presumption that consumer has used a reasonable means of revocation.

Timeframe for Honoring a Do-Not-Call or Revocation Request

With respect to robocalls and robotexts made to residential or wireless telephone numbers, the FCC proposes to require that callers must honor company-specific do-not-call or revocation of consent requests within 24 hours of receipt. The current rules allow callers making certain calls and texts 30 days from the date of any do-not-call request, so this is a significant proposed change that will almost certainly result in extensive litigation and revisitation of current compliance procedures.

Consent to Calls from Wireless Carriers

Since 1992, the FCC has not required wireless carriers to obtain “additional consent” from their own subscribers prior to autodialed, artificial or prerecorded calls to their subscribers because the subscribers incur no fees from such calls. Thus, wireless providers have argued that the TCPA’s prior express consent requirement does not apply to them because there is no charge to subscribers for messages from them and, thus, no prior consent is required for calls from them. In response, the FCC proposes the elimination of a blanket exemption and, instead, proposes to codify a qualified exemption for informational robocalls and robotexts from wireless providers to their subscribers. The FCC proposes the following qualifying conditions:

Voice calls and text messages are initiated by a wireless service provider only to an existing subscriber of that wireless service provider at a number maintained by the wireless service provider.
Voice calls and text messages must state the name and contact information of the wireless provider (for voice calls, these disclosures must be made at the beginning of the call).
Voice calls and text messages must not include any telemarketing, solicitation, or advertising.
Voice calls and text messages must be concise, generally one minute or less in length for voice calls or 160 characters or less in length for text messages.
A wireless service provider may initiate a maximum of three voice calls or text messages during any 30-day period.
A wireless service provider must offer recipients within each message an easy means to opt out of future such messages; voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call; voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls; text messages must inform recipients of the ability to opt out by replying “STOP.”
A wireless service provider must honor opt-out requests immediately.

According to the FCC, this proposal balances the privacy interest of the TCPA with the legitimate interests of wireless providers in communicating with their subscribers. Further, the FCC notes that wireless providers are free to use live agents or equipment that does not constitute an autodialer to make such calls or texts without violating the TCPA or may obtain prior express consent from their subscribers. The FCC seeks comment on whether the three-call limit over a 30-day period should include texts that wireless providers are mandated to make to their subscribers pursuant to state or federal law, and further, seeks comment on the burdens that the proposal may impose on wireless providers.

Conclusion

The FCC is proposing sweeping changes to the TCPA that could result in additional compliance issues for callers and texters and will almost certainly require revisions of current TCPA compliance efforts. The public comments sought by the FCC are due within 30 days after the public of the Notice in the Federal Register and reply comments will be due 15 days thereafter. Interested companies should hasten to make the FCC aware of their concerns.

Buchanan’s experienced class action defense litigators have extensive experience in both advising companies regarding TCPA compliance and defending companies in lawsuits alleging TCPA violations. Contact our team with any questions you may have regarding how the proposed TCPA changes may affect your company, or with any other TCPA compliance or defense-related issues your company may be facing.