TCPAWorld continues to bolt ahead with developments.
In the latest news, the FCC has issued a new notice of proposed rulemaking (NPRM) seeking to clarify and expand consumer’s right to opt out of robocalls.
There are several pieces to the NPRM of note.
First, the Commission proposes to codify the rule that consumers may revoke TCPA consent through any reasonable means. This has been the de facto rule since the TCPA Omnibus ruling in 2015 but–as the Commission points out in the new NPRM–that rule was never actually etched into the CFR as a binding rule.
Under the new (old) proposed rule consumers could opt out using words such as “stop,” “revoke,” “end,” or “opt out,” and that callers “may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.”
Previously the Courts have confirmed that a contract term designating a revocation mechanism was not a “unilateral” opt out–and some courts find contractual consent cannot be revoked— so it remains to be seen whether the new proposed rule would alter the case law on this point.
The Commission does want to provide some guidance on what is unreasonable as well. The case law is peppered with instances of people revoking consent by sending letters via fax to some obscure number and then suing when calls continue. The FCC wants to hear about these instances: What are the most common situations in which callers are unable to process opt-out requests from consumers? Are there ways that the Commission could address these situations in this proceeding consistent with our goal not to place an unreasonable burden on consumers to opt out of robocalls? We propose to codify that callers that do not believe that consumers have used a reasonable method to convey a request to revoke consent will be afforded an opportunity to rebut the presumption on a case-by-case basis, should a complaint be filed with the Commission or finder of fact. We seek comment on the types of evidence that would suffice to rebut the presumption. For example, if the consumer directs the request to a telephone number or email address, and the caller presents evidence that the consumer lacks a reasonable basis to expect that the request will be received by it, should we hold that such a method to revoke consent is not in fact reasonable? We believe such a rule would balance the consumer’s right to revoke consent in an easy and reasonable manner with the caller’s ability to process such revocation requests. We seek comment on this proposal, including any impact on small entities.
Interesting stuff.
Perhaps the biggest new proposed change, however, is the revocation timetable. Currently the CFR gives callers up to 30 days to honor an opt out. Many states are in accord–the new Florida amendment gives texters 15 days. But the FCC wants to cut that timeframe down to just 24 hours:
We seek comment on this proposal, including on the 24-hour period. Is this period reasonable? Should we, rather, require that revocations be honored immediately upon receipt or consider some other timeframe?
Seems tough to impose a limit here–many different circumstances exist. Not always possible to stop calls so quickly. The current rule of “reasonableness” has been working fine. Not sure why the FCC is moving to change this. But comments are wanted!
Next, we see a VERY useful proposed change brought on by my buddy the Kingmaker over at Capital One.
Specifically, Capital One file a petition way back when asking the FCC to allow companies to send a one time confirmation message to consumers asking them to clarify which types of texts or calls they would like to “STOP”. The FCC proposes making this dream a reality:
We also propose to codify that senders can include a request for clarification in the onetime confirmation text, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer that they wish to receive further communications from the sender. We further propose that a lack of any response to the confirmation call or text must be treated by the sender as a revocation of consent for all robocalls and robotexts from the sender. We do so in response to Capital One’s petition seeking confirmation that the text sender may request clarification in its one-time confirmation message of the scope of the recipient’s revocation request when that recipient has consented to receiving multiple categories of informational messages from the sender.
Lots of wiggle room here for callers. I like it. But notice that all calls must stop until the consumer responds!
Will provide more analysis here over the next few days.
You can read the entire NPRM here: FCC Revocation NPRM
If you have questions, feel free to reach out: https://www.troutmanamin.com/contact
“Currently the CFR gives callers up to 30 days to honor an opt out.” True, but that’s not the same as revocation of consent for “robocalls” i.e. ATDS/prerecorded calls. The 30 days provision only applies to section 227(c), or the do-not-call rules, and permits the seller 30 days to honor a do-not-call request. That means they still have 30 days within which they might reasonably be able to make “telephone solicitations” and that would apply to manually dialed, live person calls. However, “consent”, whether regular express consent (required for ATDS/prercorded non-marketing calls), or written consent (for ATDS/prerecorded marketing calls) can be “revoked at any time and by any reasonable means”. Nowhere does the CFR or the TCPA give any entity 30 days to still make “robocalls” once the called party has revoked consent. No entity can ever make such calls legally in the absence of consent.
More philosophically, doesn’t consent necessarily expire the moment the giver of consent conveys as such? How could it possibly extend to a time when both parties mutually agree some particular act has taken place or when a third-party (like even the government) stipulates? How would that play out in other situations requiring consent? For example, “you consented before, what do you mean you don’t consent anymore? You need to do such and such before you can revoke your consent and until then I have consent to do what you agreed to let me do before”. Yikes!
When it comes to contractually bargained for consent, which can be valid consent under the TCPA only if it meets the requirements under 47 CFR § 64.1200(f)(9)(i)(B), meaning the signatory was made aware that she/he was not required to agree, but did so anyway, it could be argued that a contractual provision dictating the manner of revocation should take precedence. I for one am yet to see a valid contract where the consent purportedly gathered met the requirements of the CFR. Most contracts force consent from the signatory by burying such provisions in pages of fine print. By the way, shouldn’t the FCC really be more specific in its language in the NPRMs, like what even is a “robocall” lol??!!! Geez.