On February 15, the Federal Communications Commission (“FCC”) adopted new consent revocation rules for robocalls and robotexts, which the FCC defined as calls made using an “automatic telephone dialing system” or an artificial or prerecorded voice.  Under the Telephone Consumer Protection Act (“TCPA”) and the FCC’s implementing rules, callers and texters must obtain “prior express consent” or “prior express written consent,” depending on the call/text content, from consumers to send such communications absent an applicable exemption. 

According to the Order, the new rules “clarify and strengthen consumers’ rights under the TCPA to grant and revoke consent to receive robocalls and robotexts.”  Specifically, the adopted rules (1) “make clearer that revocation of consent can be made in any reasonable manner;” (2) “require that callers honor do-not-call and consent revocation requests as soon as practicable” and within 10 business days of receipt; and (3) “limit text senders to a one-time text message confirming a consumer’s request that no further text messages be sent.”  We summarize these new requirements below.

The Order also contains a Further Notice of Proposed Rulemaking pertaining to robocalls and robotexts from wireless providers to their own subscribers, and seeks comment on a request to extend consent revocation requirements to all artificial or prerecorded voice calls. 

1) Revoking Consent in Any Reasonable Manner

The FCC adopted a new rule that will permit a called party to revoke consent by using “any reasonable method to clearly express a desire not to receive further calls or text messages from the caller or sender.” 

The new rule gives specific examples of mechanisms and words that constitute a “reasonable means” of revoking consent, including(i) through the use of an automated, interactive voice or key press-activated opt-out mechanism; (ii) through a text response using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel,” or “unsubscribe;” and (iii) through a submission to a website or telephone number provided by the sender for consent revocation purposes.

The new rule also states that “[i]f a reply to an incoming text message uses words other than ‘stop,’ ‘quit,’ ‘end,’ ‘revoke,’ ‘opt out,’ ‘cancel’ or ‘unsubscribe,’ the caller must treat that reply text as a valid revocation request if a reasonable person would understand those word to have conveyed a request to revoke consent.”  If a text protocol is used that does not accommodate reply texts, then the sender must specify so in the text message and “clearly and conspicuously provide reasonable alternative ways for a consumer to revoke consent, such as a telephone number, website link, or instructions to text a different number to revoke consent.”

The use of a method that is not specified under the new rule creates a rebuttable presumption that the consumer has revoked consent unless the sender can demonstrate through a totality of circumstances test that the method the consumer used to revoke consent was not reasonable.  The Order states that either the FCC or a court would be the relevant factfinder in a such a dispute.

In adopting these new rules, the FCC expressly declined to permit senders to designate a specific means of revoking consent and limit consent revocation to those means.

2) Timeframe for Honoring Do-Not-Call and Consent Revocation Requests

    The FCC amended its rules to require that callers honor revocation-of-consent requests as soon as practicable and no more than 10 business days after receipt of the request.  Initially, the FCC proposed requiring callers to honor such requests within 24-hours but commenters raised various concerns with this timeframe.  The FCC noted that this new timeframe “is consistent with the timeframe that has been in place for decades to process revocation requests concerning commercial e-mail under [the FCC’s] CAN-SPAM rules.”

    3) Use of One-Time Text Message to Confirm Scope of Opt-out

    The new rules codify a prior declaratory ruling that the use of “a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the [FCC’s] rules as long as the confirmation text merely confirms the called party’s opt-out request and does not include any marketing or promotional information, and the text is the only additional message sent to the called party after receipt of the opt-out request.”  The confirmatory text must be sent within five minutes; if it takes longer, the sender may have to show that the delay in sending the text was reasonable.  

    Under the new rules, senders who transmit multiple categories of texts in a program can include a request for clarification in an opt-out confirmation text as to whether the revocation request was meant to encompass only a certain category of messages or all such messages.  The FCC stated that in “the absence of an affirmative response from the consumer that they wish to continue to receive certain categories of informational calls or text messages from the sender, no further robocalls or robotexts for which consent is required can be made to this consumer.”

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    Photo of Yaron Dori Yaron Dori

    Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the…

    Yaron Dori has over 25 years of experience advising technology, telecommunications, media, life sciences, and other types of companies on their most pressing business challenges. He is a former chair of the firm’s technology, communications and media practices and currently serves on the firm’s eight-person Management Committee.

    Yaron’s practice advises clients on strategic planning, policy development, transactions, investigations and enforcement, and regulatory compliance.

    Early in his career, Yaron advised telecommunications companies and investors on regulatory policy and frameworks that led to the development of broadband networks. When those networks became bidirectional and enabled companies to collect consumer data, he advised those companies on their data privacy and consumer protection obligations. Today, as new technologies such as Artificial Intelligence (AI) are being used to enhance the applications and services offered by such companies, he advises them on associated legal and regulatory obligations and risks. It is this varied background – which tracks the evolution of the technology industry – that enables Yaron to provide clients with a holistic, 360-degree view of technology policy, regulation, compliance, and enforcement.

    Yaron represents clients before federal regulatory agencies—including the Federal Communications Commission (FCC), the Federal Trade Commission (FTC), and the Department of Commerce (DOC)—and the U.S. Congress in connection with a range of issues under the Communications Act, the Federal Trade Commission Act, and similar statutes. He also represents clients on state regulatory and enforcement matters, including those that pertain to telecommunications, data privacy, and consumer protection regulation. His deep experience in each of these areas enables him to advise clients on a wide range of technology regulations and key business issues in which these areas intersect.

    With respect to technology and telecommunications matters, Yaron advises clients on a broad range of business, policy and consumer-facing issues, including:

    • Artificial Intelligence and the Internet of Things;
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    • IP-enabled applications, services and content;
    • Section 230 and digital safety considerations;
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    • Customer Proprietary Network Information (CPNI) requirements;
    • The Cable Privacy Act
    • Net Neutrality; and
    • Local competition, universal service, and intercarrier compensation.

    Yaron also has extensive experience in structuring transactions and securing regulatory approvals at both the federal and state levels for mergers, asset acquisitions and similar transactions involving large and small FCC and state communication licensees.

    With respect to privacy and consumer protection matters, Yaron advises clients on a range of business, strategic, policy and compliance issues, including those that pertain to:

    • The FTC Act and related agency guidance and regulations;
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    • The application of federal and state telemarketing, commercial fax, and other consumer protection laws, such as the Telephone Consumer Protection Act (TCPA), to voice, text, and video transmissions.

    Yaron also has experience advising companies on congressional, FCC, FTC and state attorney general investigations into various consumer protection and communications matters, including those pertaining to social media influencers, digital disclosures, product discontinuance, and advertising claims.

    Photo of Andrew Longhi Andrew Longhi

    Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

    Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial…

    Andrew Longhi is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and Technology and Communications Regulation Practice Groups.

    Andrew advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, commercial transactions involving personal information and cybersecurity risk, and responses to regulatory inquiries.

    Andrew is Admitted to the Bar under DC App. R. 46-A (Emergency Examination Waiver); Practice Supervised by DC Bar members.

    Photo of Jorge Ortiz Jorge Ortiz

    Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

    Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related…

    Jorge Ortiz is an associate in the firm’s Washington, DC office and a member of the Data Privacy and Cybersecurity and the Technology and Communications Regulation Practice Groups.

    Jorge advises clients on a broad range of privacy and cybersecurity issues, including topics related to privacy policies and compliance obligations under U.S. state privacy regulations like the California Consumer Privacy Act.