Earlier this year, the Federal Communications Commission (FCC) published a new report and order (“Order”) concerning revocation of consumer consent under the Telephone Consumer Protection Act (TCPA). The new rules revise how consumers may revoke consent they have provided to receive robocalls and robotexts. On Oct. 11, the FCC announced the new rules will take effect on April 11, 2025.
Background
Generally speaking, the TCPA requires companies to obtain a consumer’s “prior express consent” before contacting that consumer via robocall or robotext. Companies that violate this requirement could face financial penalties, with even steeper penalties for knowing and willful violations. With the threat of TCPA-related litigation ever present, it is important for companies to familiarize themselves with the new rules before they take effect. As a reminder, the rules that will go into effect on April 11, 2025, are as follows.
Key Provisions
Revoking Consent Through Reasonable Means
The Order prohibits callers and senders from designating an exclusive means of revoking consent. Instead, consumers are entitled to revoke their consent from receiving robotexts and robocalls through “any reasonable manner that clearly expresses a desire not to receive further calls or text messages.” The Order provides a list of key words, such as stop, quit, end and revoke that, if used, conclusively revoke consent and cannot be challenged. The list is not intended to be exhaustive. If a consumer uses a word or phrase not included in the Order, a rebuttable presumption is created “that the consumer has revoked consent, absent evidence to the contrary.” While this rebuttable presumption appears to be broad, the burden of proof still largely rests on the consumer. In the event of a dispute, consumers must point to the precise message or method used to convey their revocation of consent, and a court may look at the totality of circumstances surrounding the situation to determine “whether the consumer had a reasonable expectation that they could effectively communicate their request for revocation to the caller in that circumstance.”
Time Frame for Honoring Do-Not-Call and Consent Revocation
The Order amends the TCPA rules to require that callers and texters process do-not-call and revocation-of-consent requests from consumers “within a reasonable timeframe from the date that the request is made, not to exceed 10 business days after receipt of the request.” In a footnote, the Order encourages callers to “honor such requests as soon as practicable,” but the Order stops short of subjecting callers and texters to the more stringent “as soon as practicable” standard that was originally proposed.
Scope of Revocation of Consent and Post-Revocation Communication
The Order clarifies that revocation of consent from a particular type of robocall or robotext operates as revocation of consent to all robocalls and robotexts from the caller or sender to that phone number. Once consent is revoked, a caller or sender cannot make robocalls or send robotexts to the recipient absent an applicable exemption. If an exemption applies, a caller or sender must comply with the conditions on the number and frequency of their communications, and the recipient can choose to opt out of receiving the exempted communications. The Order states that revocation of consent to receiving robocalls and robotexts operates separately from the ability of callers to make informational calls without consent.
Confirmatory Opt-Out Texts
Finally, the Order codified a long-standing FCC determination that a “one-time text message confirming a request to revoke consent from receiving any further calls or text messages does not violate [the TCPA]” as long as the message only confirms the recipient’s revocation request and does not include additional marketing or promotional information. This provision has already gone into effect, along with a requirement that confirmatory text messages must be sent within five minutes of receiving the opt-out request. The five-minute requirement allows for delays in some circumstances, such as if the sender is under a legal requirement to not contact the consumer. Senders may also include a clarification request in the confirmation message in the event that the recipient “has consented to several categories of text messages from the sender."
Next Steps
The new rules governing revocation of consent are critically important. The issue of whether consent had been effectively revoked commonly occurs in TCPA litigation. Companies should familiarize themselves with the new requirements and be prepared to implement them by the April 11, 2025, effective date.
THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING REVOKING ROBOCALL PERMISSIONS. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS.