FCC Proposes New Rules for Revocation Under the TCPA

On June 29, 2023, the Federal Communications Commission (FCC or Commission) issued a notice of proposed rulemaking clarifying how consumers may revoke consent to receive calls or texts under the Telephone Consumer Protection Act (TCPA). The FCC is accepting comments on the proposed rule until July 31, 2023.

There are three issues on which the FCC is requesting comment:

A. Revocation of Consent in any Reasonable Way

The FCC proposes to codify its 2015 ruling that a consumer may revoke prior express consent to receive autodialed or prerecorded voice calls through any reasonable means. Per the FCC’s commentary, consumers only need to clearly express a desire not to receive further calls or text messages, including words such as “stop,” “revoke,” “end,” or “opt out.” Revocation could be done by text message, voicemail, or email to any telephone number or email address where the consumer can reasonably expect to reach the caller. Doing so would create a rebuttable presumption that the consumer has revoked consent in a reasonable way.

Callers, however, could not designate an exclusive means to request revocation of consent. If a text initiator uses a texting protocol that does not allow reply texts, it would be required to provide a clear and conspicuous disclosure that return texts are not received and provide a reasonable alternative to revoke consent. Callers would be allowed to provide evidence to rebut the presumption that the revocation was reasonable.

The proposed rule also would require requests to revoke consent to be honored within 24 hours, although the FCC suggested it was open to a stricter rule requiring revocations to be honored immediately.

The Commission additionally proposed requiring package delivery companies to offer recipients the ability to opt out of future notifications, which must be honored immediately, and if a residential telephone subscriber requests to not receive artificial or prerecorded voice calls, the caller must record the request and put the subscriber’s name and phone number on the do-not-call list, within 24 hours of such request.

B. Sending Revocation Confirmation Text Messages

The FCC further proposes to codify its prior ruling that a one-time text message confirming a consumer’s request for no further text messages does not violate the TCPA, provided the message only confirms the opt-out request and does not include any marketing or promotional information.

The FCC is considering expanding that ruling to allow the one-time confirmation text to include a request for clarification of what the consumer is opting out of in situations where the consumer receives several different types of messages from the texter. The clarification message cannot include any marketing or promotional information and no response from the consumer must be taken to mean they are opting out of all messages.

C. Wireless Subscribers May Be Able to Revoke Consent to Receive Notices From Their Provider

A prior Commission ruling provided that wireless carriers did not need to obtain prior express consent to send messages to their subscribers if the subscribers are not charged. The FCC now proposes to narrow that exemption to apply only if certain conditions are satisfied:

1. Calls and texts are initiated only to an existing subscriber at a number maintained by the wireless provider;
2. Calls and texts must state the name and contact information of the provider (for calls that must be stated at the beginning of the call);
3. Calls and texts must not include any telemarketing, solicitation, or advertising;
4. Calls and texts must be concise — one minute or less or 160 characters or less;
5. The provider may initiate up to three calls or text messages during any 30-day period;
6. The provider must offer an easy means to opt out of future messages for each message or call; and
7. Opt-out requests must be honored immediately.

The FCC requests comments on these proposed rules, specifically whether the time frames are reasonable, situations where opt-out requests cannot be quickly processed, the type of evidence that would rebut the presumption that revocation was done in a reasonable way, and whether there are other situations where exemptions to the prior express consent requirement should remain.