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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

FCC: Sending Opt-Out Confirmation Text Does Not Violate TCPA

Posted in Federal Communications Commission

The Federal Communications Commission has ruled that companies may send a one-time text message to confirm that a subscriber has opted out of receiving text messages without violating the Telephone Consumer Protection Act (TCPA).  In the FCC’s view, if a consumer has consented to receiving text messages and subsequently opts out, the consumer’s prior express consent to receive text messages initially can be reasonably construed to include consent to receive the opt-out confirmation message.  The FCC’s ruling confirms a practice that is endorsed under the Mobile Marketing Association’s best practices guidelines.

The FCC noted that its holding is limited to text messages that “1) merely confirm the consumer’s opt-out request and do not include any marketing or promotional information; and 2) are the only additional message sent to the consumer after receipt of the opt-out request.”  For example, texts that contain promotional materials (such as “your request to opt-out of future messages will be honored but we are offering you a 10% discount on our products”) would likely be deemed impermissible.  The FCC also suggested that entities should send the confirmation text message within five minutes of the consumer’s opt-out request. 

The accompanying statement by Commissioner Ajit Pai expressed hope that the FCC’s order would “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.”  Indeed, last month a federal district court in California granted summary judgment for Citibank on this issue, holding that “imposition of liability under the TCPA for a single, confirmatory text message would constitute an impermissibly absurd and unforeseen result.”