The rule on sending a confirmation text in response to revocation request will take effect on April 4 while other provisions remain delayed.
03/06/2024 1:20 P.M.
4.5 minute read
On Feb. 16, 2024, the Federal Communications Commission adopted an order codifying new rules regarding how consumers may revoke previously granted consent to receive autodialed calls or texts or prerecorded or artificial voice calls.
ACA International has been deeply involved in the development of these rules.
The FCC’s initial proposal would have required callers to honor revocation requests within 24 hours. ACA advocated for a 10-business-day time period, which the FCC adopted in its final rules. ACA also sought and obtained several critical revisions once a draft of the final order (PDF) was released.
Reasonable Means and Burdens of Proof
The FCC’s order reaffirms the general revocation rule first adopted in 2015, which allows consumers to use any reasonable revocation means as long as the intent to revoke is clearly expressed. The order also provides further clarity on what constitutes reasonable means. It provides that consumers who use one of several means specified in the order, including typing stop, quit, end, revoke, opt out, cancel or unsubscribe in response to a text, will be deemed to have conclusively revoked consent.
The order goes on, however, to state that other reasonable means may also be used. The draft of the order placed the burden of proof squarely on callers to show that a consumer’s revocation attempt was not reasonable.
ACA, joined by other trade associations, noted that the FCC’s proposal was contrary to judicial precedent. The FCC revised this language to require that consumers relying on revocation must prove to the fact finder that he or she submitted a request for revocation, but appears to have muddled the issue of who bears the ultimate burden of showing the means was reasonable.
The final order states that if the caller disputes that the revocation request was made using a reasonable method, “a totality of circumstances analysis will determine whether the caller can demonstrate that a request to revoke consent has not been made in a reasonable manner.”
It remains to be seen how the courts will interpret this allocation of burdens.
Timeframe to Honor Revocation Request
ACA also successfully sought revision of one further aspect of the order: the time frame for honoring consent. The draft order proposed that callers must honor consent “as soon as practicable” but no later than 10 business days. ACA advocated for clarity on this issue, and the commission changed the language to, “within a reasonable time from the date that the request is made” not to exceed 10 business days.
Confirmation Texts and the 5-Minute Rule
Consistent with prior FCC rulings, the order allows text senders to send a one-time text back to the consumer confirming that the revocation request has been received and also seeking, if necessary, further information on the scope of the request.
The draft order required that the confirmation text be sent within 5 minutes of receipt. ACA pointed out that debt collectors are prohibited by the Fair Debt Collections Practices Act from communicating with consumers during certain times and thus could not comply with the 5-minute rule without violating the FDCPA. The order recognizes this concern and adds this footnote:
We note that when compliance with a specific legal requirement prohibits the sending of a confirmation text message within five minutes that this constitutes a sufficient showing that any such delay is reasonable. Any such delay should not extend beyond the scope of the underlying prohibition on sending the text message. See, e.g., Letter from Leah Dempsey et al., Counsel for ACA International to Marlene Dortch, Secretary, FCC, dated Feb. 7, 2024, at 8 (contending that statutes such as the Fair Debt Collection Practices Act restrict the ability of debt collectors to send messages during certain hours of the day) (ACA et al. ex parte).
Scope of Consent
Finally, the order requires that upon receipt for a request to revoke consent, all forms of communication that require consent must be stopped. The order states that “when consent is revoked in any reasonable manner, that revocation extends to both robocalls and robotexts regardless of the medium used to communicate the revocation of consent.”
At the same time, the order makes clear that “any revocation of consent request applies only to those robocalls and robotexts for which consent is required under the TCPA.” Under the current narrow definition of an autodialer, most texts do not require consent under the TCPA. The order thus creates some ambiguity regarding a text sender’s obligations with respect to revocation requests.
The order also raises the question of whether a collection agency may make a manually dialed call after receiving a revocation request. A manually dialed call does not require consent and thus would not appear to be barred under the TCPA, but agencies will still need to interpret and decide if the consumer also intended this as a request to stop communications under the FDCPA.
Effective Dates
The rule regarding sending of confirmation texts will take effect on April 4, 2024. The effective date of the remainder of the order is delayed pending approval by the Office of Management and Budget and will be announced later. In the meantime, preexisting rules regarding revocation of consent remain in effect.
ACA will provide more updates on the effective date of the remainder of the order when available. ACA’s compliance team is reviewing ACA SearchPoint documents to update the requirements from the FCC’s final order.
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