FCC Adopts Cancellation Rules – Manatt, Phelps & Phillips, LLP

On February 15, 2024, the Federal Communications Commission (FCC) voted to adopt regulations specifically addressing revocation. The FCC’s stated goals were to “strengthen consumers’ ability to withdraw consent” and “codify previously adopted protections that make it easier for consumers to withdraw consent.” The new regulations follow the FCC’s publication of a notice of proposed rulemaking on June 9, 2023, which solicited comment on revocation issues.

In its decision, the Agency adopts the following rules for withdrawal from the contract:

  • Identifiable invalidation parameters and “all reasonable means” assumptions.. The order codifies the FCC’s 2015 Omnibus recall ruling, which confirmed that consumers who have previously provided express consent to receive automatically dialed or recorded voice calls may revoke such consent “by any reasonable means.” The FCC also confirms that callers cannot “designate any exclusive means” of appeal.

    The FCC rules cover “reasonable” opt-out methods per se, including any cancellation request submitted through an “automatic, interactive opt-out mechanism activated by voice or keystroke.” For text messages, the FCC adopts a uniform list of keywords to follow:stop“, “toresign“, “end“, “void“, “toresign“, “cancel,” Or “Sign off” If the text contains words or phrases that go beyond these keywords, the fact finder will “examine the totality of the facts and circumstances” to determine the validity of the claim. If the consumer uses a different method of withdrawal from the contract than that specified in the order, “this creates a rebuttable presumption that the consumer has withdrawn consent” in the absence of evidence to the contrary.

    Moreover, FCC rules state that if a text messaging protocol does not allow text messaging, the text message initiator must “clearly and conspicuously inform the consumer in each text message that two-way text messaging is not available due to limitations technical” and “clearly and conspicuously provide the consumer with a reasonable alternative means of withdrawing consent.”

  • Reduced turnaround time for “Do Not Call” or cancellation requests. The FCC shortens the time frame in which callers must comply with company-specific do-not-call and rescission requests to “within a reasonable time after the date of the request, no longer than 10 business days from the date of receipt of the request

    Possibility to send a confirmation text asking for clarification. The FCC clarifies that a one-time text message “confirming a consumer’s request that no further text messages be sent does not violate the TCPA or the Commission’s rules” as long as the message “merely confirms the called party’s request to opt-out” and “does not contain any marketing or promotional.” The new regulations assume that a confirmation text sent within five minutes of receiving the opt-out message falls within the scope of the original consent; no message sent after this deadline shall be subject to such presumption.

    If a text recipient has consented to receiving multiple categories of text messages from a sender, the FCC also allows the sender to request in the confirmation message an explanation of which categories of messages the consumer is withdrawing consent to receive. The Consumer’s failure to respond to the confirmation message should be treated as “withdrawal of consent to All automatic calls and automatic text messages from the sender.”

  • Scope of withdrawal. The FCC generally interprets revocation in two ways. First, the FCC states that the revocation prohibits further consent-based telephone calls (telemarketing or informational) to a consumer’s telephone number. However, the FCC recognizes that unregulated or exempt communications for which consent is not required may continue unless the consumer separately opts out of receiving such exempt communications. Second, the FCC confirms that “if consent is revoked by any reasonable means, that revocation extends to both robocalls and robotext calls, regardless of the medium used to communicate the revocation.”

In addition to adopting the rules described above, the order also includes a separate further notice of proposed rulemaking (FNPR) that solicits comment on two additional issues: (1) whether wireless service providers require additional consent for automated calls or text messages from their subscribers , beyond that expressed by the unique nature of their relationship with subscribers; and (2) whether the FCC should change its rules to require an automatic opt-out mechanism everyone a call containing a recorded voice.

The order was published in the Federal Register on March 5, 2024. The amendment allowing one-time SMS confirmation, codified as 47 CFR 64.1200(a)(12), became effective on April 4, 2024. Other remaining rule changes currently remain in limbo, as they are subject to review by the Office of Management and Budget.
To read the order and FNPR, click here.

Why is this important?

The FCC continues to expand TCPA protections and, with this latest move, codifies a calling party’s ability to withdraw consent to robocalls by any reasonable means. The FCC’s new revocation parameters, such as defining the scope of the revocation and imposing a maximum ten-day deadline to implement a do-not-call or opt-out request, could render existing business practices in violation of the TCPA. Companies should re-examine their do-not-call policies, calling practices, and internal procedures for processing do-not-call and cancellation requests to ensure that these policies and procedures are consistent with the new FCC rules. Updates to accompanying training may also be needed. Additionally, companies should inventory their text programs to ensure their functionality meets the FCC’s new text-specific requirements. Companies may also consider implementing an explanation message at the time of opt-out, especially if they operate multiple text programs. Finally, while the FCC ruling uses consumer-focused language, the revocation provisions apply to all robocalls and text messages, including those sent to businesses; B2B connections are not exempt from these requirements.