Understanding the FCC’s Upcoming Changes to Robocalls & Robotexts

The communications industry is on the cusp of a sea change, with the Federal Communications Commission (FCC) looking to make sweeping modifications in the realm of robocalls and robotexts. The FCC recently unveiled a Notice of Proposed Rulemaking during a meeting held on June 8, 2023. This pivotal step signals the Commission’s aim to amplify consumer control over their telecommunication consent, and simultaneously strengthen the established guidelines under the Telephone Consumer Protection Act (TCPA) related to “prior express consent”.

Since 2012, the TCPA has permitted a single confirmation text message in response to a consumer’s opt-out request. The FCC now proposes to cement this rule, with the stipulation that such confirmation texts are solely for opt-out verification, devoid of any marketing or promotional content.

In scenarios where consumers have consented to receive a variety of informational messages, the confirmation text can seek clarification on the specifics of the opt-out. The rule mandates cessation of all robocalls and robotexts if the consumer does not provide further clarification. However, a “STOP” message in response to a request for clarification must effectively halt any further inquiries from the sender.

Empowering Consent Revocation

Expanding upon its 2015 ruling, the FCC is intent on reinforcing the consumer’s right to withdraw their prior express consent to receive robocalls and robotexts via any reasonable channel. This move signifies the FCC’s stance that restricting the means of revocation might impinge on the consumer’s ability to retract their consent. As a result, consumers should have the flexibility to send a revocation request through text messages, voicemails, or emails to any contact point where they could reasonably anticipate communication with the caller.

Callers using text protocols that do not support two-way communication may face TCPA liability risks unless their messages explicitly state the inability for two-way texting and offer alternate means of revocation. Callers disputing the consumer’s use of an unreasonable revocation method will have the opportunity to challenge this presumption on a case-by-case basis if a complaint arises.

Imposing Rapid Response to Requests

The FCC proposes to drastically cut down the timeframe callers have to comply with specific do-not-call or revocation requests from the current 30 days to a mere 24 hours. This proposed alteration could potentially instigate a surge in litigation and require substantial modifications to current compliance procedures.

Revising Exemptions for Wireless Carriers

The FCC exempted wireless carriers in 1992 from needing “additional consent” from subscribers for autodialed or prerecorded calls. The FCC now suggests doing away with this general exemption, proposing a qualified exemption for informational robocalls and robotexts from wireless carriers to their subscribers.

This qualified exemption comes with certain preconditions, including disclosing the wireless provider’s name and contact information at the beginning of each message, excluding marketing or promotional content, limiting messages to three per 30-day period, and immediately honoring any opt-out requests.

Adapting to the Changes

These proposed changes to the TCPA might dramatically reshape the compliance landscape for businesses engaging in robocalls and robotexts, necessitating a thorough reassessment of current TCPA compliance strategies. Once the Notice is published in the Federal Register, there will be a 30-day window for public comments, followed by a 15-day period for reply comments.

At Global Legal Law Firm, our lawyers are familiar with the rapidly changing nature of electronic payments processing processors, and the ever changing regulations involved, with decades of expertise in ISOs, commercial collections, credit card brands, and other forms of electronic payment processing litigation. Let us guide you through this new and volatile environment, rather than attempting to navigate it on your own.