So this new FCC ruling on revocation is absolutely massive and I GUARANTEE YOU that businesses large and small are not taking this seriously enough in terms of the huge impact it is about to have on their ability to communicate with their customers.

Big lawsuits coming over this. I guarantee it. This is particularly true since the rule does not align with consumer expectations.

Let me explain.

One of the most common questions I receive from compliance clients involves dealing with revocation in the scenario of multiple consents for a single consumer.

For instance, a consumer has provided their number in application materials for a mortgage and then also provides a full express written consent for marketing because they want to hear about additional finance products. The consumer subsequently responds “stop” to a marketing message–do the lender have to stop marketing calls as well? Does the marketing have to stop informational texts and calls?

In the old days, like in January, I might tell a client there is risk everywhere but that–generally speaking–revocation of a marketing channel consent would not undo informational channel texting and calling. This is true because the consumer expects that marketing calls will stop–that’s what they opted out of–but not informational messages, which they never asked to cease.

This is especially true if a consumer has received multiple informational alerts without complaint and then responds “stop” early in a marketing campaign. Pretty clear what the consumer is asking for is for the marketing to stop–not the alerts.

Similarly, a client might have a general consent from the consumer providing a phone number on an application and also a specific text opt-in for informational alerts (like low balance notifications.) If a consumer subsequently replied “stop” to an informational alert they had opted into (i.e. stop in response to a low balance notification) very few people would have believed that the broader consent was thereby revoked and that the bank had to stop communicating wholesale. The consumer has told the bank they don’t need low-balance alerts anymore, not that they never want to hear from the bank again.

But the FCC’s new rule throws consumer expectation out the window and concots a rule that will absolutely KILL the ability of businesses to communicate with customers.

Now, the FCC seems to limit its rule to “robocalls” and “robotexts” but remember– those words are not defined anywhere in the law (and when they are, it will not be pretty.) So you should assume this rule will apply to any message governed by the TCPA–i.e. all regulated technology calls (ATDS/prerecorded/artificial/AI voice calls) and all calls for marketing purposes to numbers on the DNC.

So let’s break this thing down.

At paragraph 29 of the new FCC order the Commission begins giving us the new scope rules.

The rule starts off favorably enough: “We clarify that any revocation of consent request applies only to those robocalls and robotexts for which consent is required under the TCPA.” That sounds ok. The word “only” usually indicates the impact of what follows will be limited. But stay with me.

The next line reads: “Once that consent is revoked, the caller may no longer make robocalls or send robotexts to a called party absent an exemption to the consent obligation.” Uh oh. So pretty quick you see the shift– once “that” consent (meaning any consent)is revoked all consent is revoked unless an exemption exists.

Now when I first read that line I thought, hmmm maybe that’s not what the Commission meant. But it gets clearer.

First, however, the Commission does clarify that where an exemption from consent exists a revocation of a consented call does not defeat the exemption: “the Commission has granted exemptions from the consent requirement for certain categories of robocalls and robotexts. In these situations, consent is not required for the caller to make or send certain exempted informational robocalls or robotexts. Instead, the caller is required to comply with specific conditions including number and frequency limits of such communications; the caller must also stop such communications only if the consumer makes a request to opt out of the exempted communications.”

Ok. So even if a consented message receives a “stop” response we know that messages that may be sent without consent can still be sent. So healthcare exempt messages, fraud alerts, package delivery notifications, etc. are still in play.

The Commission also clarifies that if a consumer opts out from exempted messages then all messages governed by the TCPA must stop: “If the revocation request is made directly in response to an exempted informational call or text, however, this constitutes an opt-out request from the consumer and all further non-emergency robocalls and robotexts must stop.”

Makes sense, I guess. but what about all the other channels of consented communication?

At paragraph 31 the Commission explains: “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.” Uh oh. Does this mean that a “stop” to a text requires you to stop calling too?

Yep.

The FCC continues: “For example, if the consumer revokes consent using a reply text message, then consent is deemed revoked not only to further robotexts but also robocalls from that caller…. Revocation of consent [is] an instruction that the caller no longer contact the consumer at that number. As a result, consent is specific to the called party and not the method of communication used to revoke consent.”

Wow, so there it is.

The real essence of the scope clarification here is FCC deciding for the first time that revocation applies to all forms of “contact” with a consumer. That has never been stated before by the Commission. Really really big deal.

The only mitigating this disaster comes as a result of Capital One’s wise petition being granted regarding the ability to ask the consumer to clarify the opt out scope in a final confirmatory message. The FCC says:

“[S]enders can include a request for clarification in this one-time confirmation text, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer. We limit this opportunity to request clarification to instances where the text recipient has consented to several categories of text messages from the text sender. Thus, this rule will give consumers an opportunity to specify which types of text messages they wish to no longer get, when the texter sends different types of messages. That request for clarification can seek confirmation that the consumer wishes to opt out of all categories of messages from the sender, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer that they do, in fact, wish to receive further communications from the sender. The lack of any response to the confirmation text must be treated by the sender as a revocation of consent for all robocalls and robotexts from the sender.” 

So a caller can send a one-time text back to the consumer and ask the consumer to clarify whether additional messages can continue (in a non-marketing fashion.) Consumer can respond in some manner to allow some messages to continue.

I suspect creating these one-time opt out confirmation messages is about to become an art form of sorts. We’ll see.

For now though the MASSIVELY IMPORTANT take aways here are:

1. Revocation of any sort via any channel requires ALL TEXTS AND CALLS for which TCPA consent would have been required to cease. Calls that do not require consent can continue, however;
2. Revocation in response to an exempted call or text revokes ALL TEXTS AND CALLS regulated by the TCPA;
3. A caller can send a one-time text confirming the opt out and asking the consumer to clarify the scope of the opt out. But no response means full revocation.

Eesh. Just massive. Queenie says this is the most important part of the rule and I think I agree.