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Bank Seeks Common Sense TCPA Clarification on Opt-Out Confirmation Texts

The Federal Communications Commission requests comment on whether companies can send follow-up messages to clarify the scope of a consumer’s opt-out without violating the TCPA. 

Capital One Services filed a Petition for Declaratory Ruling asking the FCC to “confirm that, if the sender of a lawful informational text message transmitted through an automatic telephone dialing system (ATDS) receives a valid opt-out from the recipient in response to that message, and that informational message was part of a program in which the recipient had previously enrolled that transmits several categories of informational messages, then, pursuant to the Commission’s ruling in Soundbite, the sender may clarify in an opt-out confirmation message to the recipient the scope of the recipient’s opt-out request without violating the Telephone Consumer Protection Act (TCPA) or related Commission rules.”

In 2012, the FCC ruled in its Soundbite Declaratory Ruling that a company may confirm a recipient’s opt-out request without violating the TCPA by sending a one-time opt-out confirmation message within a short period of time. In its Petition, Capital One requests that the FCC clarify whether it can send a follow-up message to the recipient to confirm the scope of the requested opt-out, grounding its requested clarification in the fact that the FCC found the practice of confirmation texts to be widespread among various industries and to be good consumer policy.

Capital One intends to use its intelligent assistant program, Eno, to provide an opt-out confirmation notice in response to a “STOP” command from the recipient. For example, if a text message recipient receives a low balance alert text from Capital One, and replies to the message with “STOP,” the recipient will receive an opt-out confirmation text that says “STOP only low balance or all Eno texts? To STOP only low balance but not other Eno texts, REPLY 1.  If you do not reply, all Eno texts will STOP.”

The Petition makes clear that the confirmation text would “not contain marketing or promotional content or seek to encourage the recipient to reconsider the opt-out request.” Capital One argues that a confirmation text seeking to clarify the recipient’s intent will allow consumers to make an “informed choice as to which messages they do and do not want to receive and provide them a better account management experience.”

Capital One stated that its requested clarification is necessary “to ensure that it can implement this customer-friendly measure without having to defend itself in costly and unnecessary litigation. The increase in filing of TCPA claims, together with the nature of its penalties, have made the submission of this petition for declaratory ruling advisable.” The TCPA and FCC rules prohibit the use of autodialers to make non-emergency calls or texts to any telephone number assigned to mobile telephone services without prior express consent. So when someone revokes consent to receiving an auto-dialed call or text, follow up from the sender after that revocation can run afoul of the TCPA.

The FCC’s ruling on the Petition has the potential to provide some relief by allowing companies to better tailor their alert programs to their customers without fear of being named in a TCPA class action. As Capital One notes in its Petition, consumers often desire to access information and take action electronically, and corporations in industries beyond the financial sector can benefit from a favorable FCC ruling. Comments on Capital One’s petition are due December 9, 2019, and reply comments are due December 24, 2019

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