The Federal Communications Commission (“FCC” or “Commission”) recently released a Notice of Proposed Rulemaking (“NPRM”), seeking comment on its proposed measures to clarify and strengthen consumers’ ability to revoke consent to receive robocalls and robotexts. The deadline for submitting comments is July 31, 2023 and reply comments are due by August 14, 2023.

Specifically, the Commission proposes to:

• ensure that revocation of consent does not require the use of specific words or burdensome methods;
• require that callers honor do-not-call and consent revocation requests within a reasonable time, not to exceed 24 hours of receipt;
• codify that consumers only need to revoke consent once to stop getting all robocalls and robotexts from a specific entity; and
• allow wireless consumers the option to stop robocalls and robotexts from their own wireless service provider.

Revoking Consent In Any Reasonable Way

The FCC proposes codifying a rule that would make clear that consumers may revoke prior express consent in any manner that clearly expresses a desire not to receive further calls or text messages, including using words such as ‘‘stop,’’ ‘‘revoke,’’ ‘‘end,’’ or ‘‘opt out,’’ and that callers may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method. This proposal includes enabling consumers to revoke consent made by text message, voicemail, or email to any telephone number or email address at which the consumer can reasonably expect to reach the caller.

The Commission further proposes to codify that callers that do not believe that consumers have used a reasonable method to convey a request to revoke consent will be afforded an opportunity to rebut the presumption on a case-by-case basis, should a complaint be filed with the Commission or finder of fact. The FCC seeks comment on the types of evidence that would suffice to rebut the presumption.

Timeframe for Honoring a Do-Not-Call or Revocation Request

The FCC intends to require callers to honor company-specific do-not-call and revocation-of-consent requests for robocalls and robotexts within 24 hours of receipt. Currently, callers making telemarketing calls or exempted artificial and prerecorded voice calls to residential telephone numbers and exempted package delivery calls and texts to wireless consumers must honor do-not-call requests within a reasonable time not to exceed 30 days from the date of any such request. This proposal will establish new rules where no specific timeframe for honoring such requests currently exists. The Commission seeks comment on this proposal, including on the 24-hour period. Is this period reasonable? Should the FCC, rather, require that revocations be honored immediately upon receipt or consider some other timeframe?

The Commission also proposes to amend its rules for exempted package delivery calls to require that such callers honor opt-out requests immediately. Alternatively, stakeholders are encouraged to provide feedback on any reason that package delivery calls should continue to be treated differently from other exempted callers to allow for up to 30 days to honor an opt-out request.

Revocation Confirmation Text Message

The Commission proposes to codify a previous declaratory ruling clarifying that a one-time text message confirming a consumer’s request that no further text messages be sent is permissible if the confirmation text merely confirms the called party’s optout request and does not include any marketing or promotional information, and the text is the only additional message sent to the called party after receipt of the opt-out request. 

The FCC also intends to codify a ruling that senders can include a request for clarification in the one-time confirmation text, provided the sender ceases all further robocalls and robotexts absent an affirmative response from the consumer that they wish to receive further communications from the sender. A lack of any response to the confirmation call or text must be treated by the sender as a revocation of consent for all robocalls and robotexts from the sender.

The Commission further seeks comment on related issues, such as any impact on smaller entities. Stakeholders are encouraged to opine on whether there are other limitations the Commission should impose to protect consumers’ rights to opt out of text messages yet ensure callers’ ability to correctly interpret consumers’ intent in revoking consent.

Wireless Carrier Calls & Texts to Subscribers

The FCC proposes to require wireless providers to honor their customers’ requests to cease autodialed, prerecorded voice, and artificial voice calls, and autodialed texts. Currently, wireless carriers need not obtain consent prior to initiating autodialed, artificial voice, or prerecorded voice calls to their own subscribers as long as they are not charged for the calls.

The Commission recommends a qualified exemption for informational robocalls and robotexts from wireless providers to their subscribers. More specifically, those calls would be exempt from the prior-express-consent requirement if, and only if, certain conditions are satisfied. Those proposed conditions include:

• voice calls and text messages are initiated by a wireless provider only to an existing subscriber of that wireless service provider at a number maintained by the wireless service provider;
• voice calls and text messages must state the name and contact information of the wireless provider;
• voice calls and text messages must not include any advertising;
• voice calls must be one minute or less in length and text messages must not exceed 160 characters;
• a wireless service provider may initiate a maximum of three voice calls or text messages during any 30-day period;
• a wireless service provider must offer recipients within each message an easy means to opt out of future such messages; and,
• a wireless service provider must honor opt-out requests immediately.

The FCC also proposes that wireless providers have the option to obtain the prior express consent of their subscribers to avoid the need to rely on this exemption and its accompanying conditions. The Commission further seeks comment on any benefits consumers receive from calls or messages that may be lost as a consequence of an opt-out or limit on the number of calls or messages sent. Are there any potential drawbacks for consumers to the conditions proposed? If so, should the Commission modify its proposed conditions to account for any such drawbacks?

NEED HELP WITH ROBOCALL MITIGATION, COMPLIANCE AND LITIGATION?

The CommLaw Group Can Help!

Given the complexity and evolving nature of the FCC’s rules, regulations and industry policies & procedures around Robocall Mitigation and Compliance issues (e.g., Stir/Shaken, TRACED Act, FCC Rules & Regulations, US Telecom Industry group, ATIS, NECA, VoIP Numbering Waivers, Know Your Customer and the private sector ecosystem), as well as the increased risk of business disputes, consumer protection enforcement by state attorneys general, and even civil litigation, and anticipating the potential torrent of client questions and concerns, The CommLaw Group formed a “Robocall Mitigation Response Team” to help clients (old and new) tackle their unique responsibilities.

CONTACT US NOW, WE ARE STANDING BY TO GUIDE YOUR COMPANY’S COMPLIANCE EFFORTS
Michael Donahue — Tel: 703-714-1319 / E-mail: mpd@CommLawGroup.com
Rob Jackson – Tel: 703-714-1316 / E-mail: rhj@CommLawGroup.com
Ron Quirk – Tel: 703-714-1305 / E-mail: req@CommLawGroup.com