Yesterday the Federal Communications Commission (FCC) released a Declaratory Ruling stating that sending a one-time text message to confirm receipt of a consumer’s request to opt out of receiving text messages does not violate the Telephone Consumer Protection Act, 47 U.S.C. Section 227 (TCPA), if the following conditions are met:

• The consumer had previously given prior express consent to receive texts from the sender, ¶ 15;
• The confirmatory text simply confirms the consumer’s request to opt-out of receiving future texts and does not include any marketing or promotional information, ¶ 11; and
• The confirmatory text is the final additional message sent to the consumer after receipt of the opt-out request, ¶ 11.

The FCC also held that if a confirmatory text is sent within five minutes of receipt of the opt-out request, the consumer’s prior express consent to receive messages will be presumed. ¶ 11. If the confirmatory text is sent more than five minutes after the opt out, however, the sender will be required to show that the delay was reasonable, “and the longer this delay, the more difficult it will be to demonstrate that such messages fall within the original prior consent.” Id.

The FCC stated that it will review questionable confirmation texts on a case-by-case basis, and noted that although the confirmatory message may include instructions on how to opt back in, texts that contain additional promotional information likely would be found to exceed the consumer’s prior consent. ¶ 12. The FCC emphasized that its finding is limited to confirmatory text messages sent after the receipt of a consumer’s opt-out request, and its ruling does not extend to any follow-up voice calls. ¶ 13.

The Declaratory Ruling was issued in response to a petition filed by SoundBite Communications, Inc. on February 16, 2012. SoundBite stated in its petition that its practice of sending confirmatory texts after receipt of an opt-out request reflects the best practices in the industry, and yet it had become embroiled in class action lawsuits claiming that the texts violate the TCPA. ¶ 5. SoundBite argued that its confirmatory texts do not use telephone auto-dialers as defined in the TCPA and thus do not violate that statute. It argued in the alternative, borrowing from the Do-Not-Call (DNC) rules, that telemarketers have 30 days to implement a DNC request. SoundBite’s confirmatory texts are sent well within that window, and thus, it argued, those texts should not be deemed to violate the TCPA. Id. The FCC chose not to reach these issues, because it found that a consumer’s prior express consent to receive text messages from the sender “can be reasonably construed to include consent to receive a final, one-time text message confirming that such consent is being revoked at the request of that consumer.” ¶ 7.

The Declaratory Ruling, order FCC 12-143, is available here.