Antitrust Law Daily Wrap Up, PRIVACY—FCC: Text Message Confirming That No Further Messages Will Be Sent Does Not Violate Telephone Consumer Protection Act, (Dec 13, 2012)

By John W. Arden, J.D., LLM.

A communications company’s sending of a one-time text message, confirming a consumer’s request that no further messages be sent, did not violate the federal Telephone Consumer Protection Act or Federal Communications Commission rules, according to a declaratory ruling of the FCC (In the Matter of SoundBite Communications, Inc., November 29, 2012).

The 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 government entities.

The FCC emphasized that the ruling applies only to situations when the sender of text messages has obtained prior express consent from the consumer to be sent text messages using an automatic telephone dialing system or “autodialer.”

This declaratory ruling ensures that wireless consumers will continue to benefit from the protection of the Telephone Consumer Protection Act (TCPA) against unwanted autodialed texts, while giving them certainty that their opt-out requests are being successfully processed, the FCC said.

On February 16, 2012, SoundBite Communications, Inc. filed a petition for a declaratory ruling that sending a one-time text message confirming a request that no further text messages be sent was not a violation of the TCPA. SoundBite sends such text messages on behalf of a number of companies that have obtained express consent to send texts to particular wireless subscribers. According to SoundBite, sending opt-out confirmations is consistent with good consumer policy and promotes the public interest.

On March 30, 2012, the Commission issued a public notice seeking comments on the issues raised in SoundBite’s petition. Several comments were filed. The majority of the commenters, including one consumer group, supported the petition. A few commenters argued that the texts violate the TCPA because they follow a revocation of an express consent to receive text messages. Others asserted that confirming texts may be costly to the recipients.

The FCC noted that neither the TCPA nor its legislative history directly addressed the circumstances under which a prior consent is deemed revoked. In such instances, the Commission may adopt a reasonable construction. The Commission in this case found that opt-out confirmation texts are considered part of the opt-out process, informing consumers that a service was scheduled or performed, and are normal communications “expected or desired” between consumers and entities to which they provided prior express consent to receive text messages.

“The available evidence regarding consumer expectations likewise supports the conclusion that a consumer’s prior express consent to receive text messages from an entity can be construed to include consent to receive a final, one-time text message confirming that such consent has been revoked,” the FCC observed. While commenters were divided on this issue, the record reflected that the sending of one-time confirmation texts is a widespread practice among various businesses, governmental entities, and non-profit organizations.

Contentions that the sending of confirming text messages is unnecessary and impose unwanted costs on consumers were rejected by the Commission on a finding that such considerations are outweighed by the benefits that consumers derive from such messages. “As noted, text messages can include important information relating to the consumer’s bank accounts, credit card, and other useful sources of information such as disaster alerts.”

In a statement accompanying the declaratory ruling, Commissioner Ajit Pai wrote that “it is good to have clear rules.” Ambiguities about what is prohibited and what is allowed under FCC rules interpreting the TCPA have forced businesses to guess where their legal obligations lie.

“Today’s common sense order ends the legal lacuna and the courtroom arbitrage it has inspired,” Commissioner Pai said. “In short, today’s order is a win for consumers and for innovative companies alike. I am pleased to support it.”

The ruling is CG Docket No. 02-278.

Cases: ConsumerProtection Privacy