FCC Issues Declaratory Ruling Clarifying Lawful Use of Confirmatory Text Message Marketing


Earlier today, the FCC released a declaratory ruling holding companies can send confirming text messages to consumers who have opted out of further messages, under specific conditions.  The FCC’s Declaratory Ruling granted a request by SoundBite Communications, Inc. and confirms that sending a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the Telephone Consumer Protection Act (TCPA) or the Commission’s rules as long as the confirmation text has the specific characteristics described in the petition.  According to the FCC, its 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 class action bar had been suing companies and other entities that, after receiving an opt-out request, quickly send a confirming message on the ground that sending the opt-out message constitutes an end to the consent to receive text messages.  The FCC ruled that the class action attorneys’ position was not valid so long as the sender:  1) has express permission to send text messages in the first place; 2) sends a text message confirming receipt and processing of the opt-out message; 3) does NOT try to persuade the consumer to change his/her mind or market any product or service; 4) sends the message within five minutes of receipt of the opt-out messages; and 5) doesn’t send any more text messages absent the consumer granting new permission.

The FCC indicated that its ruling does not permit the sender to make a voice call to the cell phone.  It also does not cover situations where a consumer opts out of future text messages when such messages were sent without initial consent.  Despite these limitations, the FCC’s decisions remains a big victory for businesses using electronic marketing.

If you would like to learn more about the ruling and its impact on your business, please contact the attorney assigned to your account.

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