Marketers are currently awaiting the outcome of the SoundBite petition regarding the practice of sending confirmation messages in response to STOP messages. As you may recall, several lawsuits were recently filed regarding the sending of the unsolicited messages — all based on the Telephone Consumer Protection Act’s (TCPA) ban on unsolicited, auto-dialed text messages — despite the fact that the Mobile Marketing Association’s (MMA) best practices guidelines direct marketers to send such messages. This is a situation where companies are getting in trouble for doing what they have been directed to do. Not only is the confirmation message best practice, but wireless companies, aggregators, and CTIA — The Wireless Association require companies to comply with the MMA guidelines before they will permit text messaging campaigns on their networks.

Due to this confusion, on March 30, 2012, the Federal Communications Commission (FCC) took steps to clarify this conflict. 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. The comments were due by May 15, 2012.

It remains to be seen how the FCC will clarify the TCPA in response to the SoundBite petition and public comments. However, while not required to do so, the courts are likely to follow the FCC’s interpretation, which will have retroactive effect.

Arent Fox is continuing to monitor developments surrounding telemarketing and the TCPA. Please contact Anthony Lupo, Sarah Bruno, Matt Mills, or Eva Pulliam with questions.