FCC Considers Petition Asking Whether Follow-Up Texts Violate TCPA

On November 7, 2019, the FCC issued a Public Notice seeking comment on a petition for declaratory ruling.  Specifically, the Petition requests the FCC to rule that a sender may contact customers who opt-out of informational text messages to clarify the scope of the recipient’s opt-out request without violating the TCPA or related Commission rules.

The request came from a financial services company seeking confirmation that it may clarify customers’ requests and allow customers to have informed control over the scope of the request without the risk of unnecessary litigation.  The company stated that when it receives a customer opt-out request it must clarify the scope of the request because some customers want to opt-out of all texts, while others only want to opt-out of a specific category of text.

The company explained that when customers enroll in the company’s program they agree to receive several categories of texts including fraud alerts, transaction history, balance information, and payment reminders.  The company stated that a clarifying opt-out text is consistent with the decision in In re: SoundBite Communications, Inc., a 2012 Declaratory Rulingin which the Commission explained that a sender may send a confirmation message in response to an opt-out request.  The company explained that when a program contains multiple categories, it is reasonable to assume that consumers expect the opt-out process to include a text clarifying the scope of the request.  It stated that confirming the permissibility of a clarifying opt-out text “promotes the TCPA’s goals of privacy and safety [by] ensuring that customers do not inadvertently opt-out of receiving important information.”

Comments are due December 9, 2019, and reply comments are due December 24, 2019.