Federal Communications Commission Issues Notice of Proposed Rulemaking That Will Impact Consent Under the Telephone Consumer Protection Act

• Publication year: 2024
• Citation: Vol. 2 No. 1

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Terance A. Gonsalves and Alina Ananian ^*

In this article, the authors discuss four ways that the Federal Communications Commission's proposed rule would strengthen consumer rights under the Telephone Consumer Protection Act.

The Federal Communications Commission (FCC) has issued a Notice of Proposed Rulemaking for the Telephone Consumer Protection Act (TCPA), addressing various issues surrounding consent by consumers to receive automated calls and texts.

Generally, the TCPA restricts robocalls and robotexts without the prior express consent of the called party or a recognized exemption. However, the TCPA does not define "prior express consent" or provide any guidance on how consumers can provide or revoke consent. Instead, the FCC has provided some guidance in the past on express consent.

The FCC's proposed rule ¹ will affect both callers and consumers because it will:

1. Now codify the FCC's past guidance on express consent;
2. Require callers to honor do-not-call and revocation-of-consent within 24 hours of receipt;
3. Rule that one-time text messages to confirm revocation do not violate the TCPA; and
4. Require wireless carriers to honor requests to cease automated calls and text messages.

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Express Consent

The FCC's proposed rule strengthens consumers' rights in four ways.

First, it ensures that revocation of consent should be reasonable and does not require the use of specific words or burdensome methods. Specifically, the FCC proposes a rule that would make clear that consumers can revoke prior express consent by using words that express a desire to opt out of future automated messages, such as "stop," "revoke," "end," or "opt out." Entities sending the automated messages may not infringe on that right by designating an exclusive means to revoke consent that precludes the use of any other reasonable method.

The FCC further proposes to codify that, when a consumer uses any reasonable method to revoke consent such as sending "STOP" or a similar message in reply to an incoming automated text message, doing so creates a presumption that the consumer has revoked consent, unless there is evidence to the contrary.

The FCC also warns entities initiating automated text messages that choose to use a texting protocol that does not allow reply texts that they bear the risk of potential liability under the TCPA unless they both provide a clear and conspicuous disclosure on each text to the consumer that two-way texting is not available due...