On March 30, 2012, the Federal Communications Commission (FCC) took steps to clarify a long-standing issue involving mobile marketing and the Telephone Consumer Protection Act (TCPA). The FCC’s Consumer and Governmental Affairs Bureau has sought comment on a February 16, 2012 petition by SoundBite Communications, Inc. that asks the FCC to declare that confirmatory, opt-out text messages do not violate the TCPA or the FCC’s rules. These one-time text messages are sent shortly after a consumer requests that a company no longer send it text messages, and confirm that the consumer will not receive further text messages. Confirmatory, opt-out text messages are required by the Mobile Marketing Association’s best practices.

As SoundBite notes, plaintiffs have alleged that these text messages violate the TCPA in several multi-million dollar class action lawsuits against a range of companies and more litigation on this issue is likely. SoundBite argues that such text messages do not violate the TCPA because:

1. Confirmatory, opt-out text messages fall within the grace period under the TCPA for opt-out requests;
   
   
2. Confirmatory, opt-out text messages are not sent using an autodialer because the text messages are targeted towards the consumer opting out of further messages; and
   
   
3. Confirmatory, opt-out text messages are consistent with good public policy and good consumer practices.

Comments are due April 30 and reply comments are due May 15 in CG docket 02-278.

SoundBite’s petition is available here.

The Public Notice is available here.

For further information, contact Michael B. Hazzard or Jason A. Koslofsky or any of our attorneys in the Telecomm Group.