Advertising Law Alerts

December 3rd, 2012

New FCC Ruling on Text Messaging

The Federal Communications Commission ("FCC") ruled that sending a one-time text message to confirm a consumer's request that no further text messages be sent does not violate the Telephone Consumer Protection Act ("TCPA").

The ruling came in response to a request from SoundBite Communications, Inc., a company that provides text messaging services for approximately 400 end-user clients. The FCC reasoned that it was reasonable to conclude that opt-out confirmation text messages are considered part of the opt-out process, "informing consumers that ''a service was scheduled or performed'' and are normal communications ''expected or desired'' between consumers and the entities to which they previously provided express consent to receive text messages." Accordingly, the FCC concluded that a consumer's prior express consent to receive text messages from an entity via an autodialer can be reasonably construed to include consent to receive a final, one-time text message confirming that such consent is being revoked. The FCC's ruling is limited to a text that (1) is sent to a consumer who previously provided express consent to receive text messages from the marketer; (2) merely confirms the consumer's opt-out request and does not include any marketing or promotional information; and (3) is the only additional message sent to the consumer after receipt of the opt-out request. The FCC further clarified that the confirmation text must be sent within five minutes of the opt-out request, to be presumed to fall within the consumer's prior express consent. However, if it takes longer, the sender will have to make a showing that such delay was reasonable, and the longer this delay, the more difficult it will be to demonstrate that such messages fall within the original prior consent.

The FCC believes that its ruling "ensures that wireless consumers will continue to benefit from the TCPA's protection against unwanted autodialed texts, while giving them certainty that their opt-out requests are being successfully processed."

If you have any questions about the FCC's ruling or the TCPA, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, Candice Kersh at (212) 826 5562 or ckersh@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.