Companies Can Send Opt-Out Messages Without Violating Law, FCC Says
The FCC clarified that one-time, confirmatory, opt-out text messages don’t violate the Telephone Consumer Protection Act (TCPA) or the FCC’s rules. The clarification came in a declaratory ruling issued Thursday by the full commission in response to a petition by SoundBite, a technology company.
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SoundBite sought clarity in February, arguing that it and other companies faced a rash of consumer lawsuits unless the FCC provided clarity. “Unfortunately, SoundBite and other companies have been targeted with multi-million dollar class action lawsuits based on these one-time confirmation messages,” SoundBite told the FCC (http://xrl.us/bn34f7). “The lawsuits allege that these single confirmation text messages are a violation of the TCPA. In fact, there have been at least twelve lawsuits filed on this matter, including against well known companies such as Red Box [sic], American Express, Barclay’s Bank, Citibank, Nascar, NFL, and GameStop."
The FCC stressed in the order that it had adopted only a limited exemption, for companies that previously obtained express consent to send a consumer text messages. “Our ruling will allow organizations that send text messages to consumers from whom they have obtained prior express consent to continue the practice of sending a final, one-time text to confirm receipt of a consumer’s opt-out request -- a widespread practice among businesses, non-profit organizations, and governmental entities, which many parties in this proceeding, including a consumer group, assert is good consumer policy,” the order said (http://xrl.us/bn34gs). “Although a few commenters contended that the sending of confirmation messages is unnecessary and will impose unwanted costs upon consumers, we find that any such costs are outweighed by the benefits that consumers derive from such messages."
Commissioner Ajit Pai said the order provides the kind of clarity industry and consumers deserve from the agency. “Today’s common-sense order ends the legal lacuna and the courtroom arbitrage it has inspired,” Pai said. “Hopefully, by making clear that the Act does not prohibit confirmation texts, we will end the litigation that has punished some companies for doing the right thing, as well as the threat of litigation that has deterred others from adopting a sound marketing practice. And consumers want confirmation texts: They want the assurance that that there will be no further intrusions on their privacy."
CTIA said the ruling was important to carriers. “CTIA has always believed that confirming a request to opt out of a short code campaign is a necessary last step to acknowledge the subscriber’s request, and, as required by the Mobile Marketing Association’s U.S. Consumer Best Practices, mobile marketing providers should always confirm receipt of opt out requests,” said David Diggs, CTIA vice president-wireless Internet development.