At its upcoming meeting on February 15, 2024, the FCC is expected to approve an Order and Further Notice of Proposed Rulemaking (Further Notice) in Docket 02-278 that would use the federal Telephone Consumer Protection Act (TCPA) to (1) strengthen the ability of consumers to reject unwanted robocalls and robotexts; (2) make it easier for them to do so; and (3) close loopholes that have allowed unwanted wireless robocalls and texts to be completed.
The TCPA, which became law in 1991, restricts robocalls or robotexts without the prior express consent of the called party except for recognized exemptions such as emergency calls. In 2015, the Commission declared that consumers who have provided prior express consent to receive autodialed or prerecorded calls may revoke such consent through any reasonable means.
The TCPA also prohibits, without the prior express consent of the called party, any non-emergency call made using an automatic telephone dialing system or an artificial or prerecorded voice to any telephone number “assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call” unless a statutory exception applies.
In the Order, the Commission plans on taking the following steps:
A. Codify its 2015 ruling that consumers can revoke consent under the TCPA through any reasonable means while providing additional clarification on what “reasonable” means in this context.
Specifically, we adopt a new rule that makes clear that any revocation request made using an automated, interactive voice or key press activated opt-out mechanism on a robocall; via a response of “stop” or a similar, standard response message 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. If a called party uses any such method designated by the caller to revoke consent, we consider that consent to be definitively revoked by a reasonable means, and future robocalls and robotexts from that caller must be stopped. When the caller offers such a means to revoke consent, that caller cannot allege that the use of such a mechanism by the called party is unreasonable. Any such request made by these specific means constitutes absolute proof that the called party has used a reasonable means to revoke consent. (Docket 02-278, Draft Order, at para. 11).
To further help consumers, the Commission adopts a standardized list of the specific words that may be used to revoke consent via a reply text message to ensure that automated systems can process such requests. Specifically, it concludes that using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe” via reply text message constitutes a reasonable means to revoke consent.
B. Require that robocallers and robotexters honor do-not-call and consent revocation requests as soon as practicable, and no longer than 10 business days from receipt.
C. Codify the Commission’s 2012 ruling which clarified 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 confirmation text merely confirms the called party’s opt-out request and does not include any marketing information. If the confirmation text is sent within five minutes of receipt, it will be presumed to fall within the consumer’s prior express consent. If it takes longer, however, the sender will have to make a showing that such delay was reasonable, and the longer this delay, the more difficult it will be to demonstrate that such a message falls within the original prior consent.
The Order (if approved) would take effect 30 days after it is published in the Federal Register.
In the Further Notice, the agency proposes and seeks industry comments on clarifying that the TCPA applies to robocalls and robotexts from wireless providers to their own subscribers and for the first time proposes to give such consumers the ability to stop these communications, if they wish, by revoking consent. Comments would be due 30 days after the Further Notice is published in the Federal Register.