The Federal Communications Commission (FCC or Commission) has partially pulled back the so-called Telephone Consumer Protection Act (TCPA) “revoke all” consent rule. That requirement, adopted in February of 2024, provided that if a called party uses any reasonable method to revoke consent to receive robocalls or robotexts, “that consent is considered definitively revoked and the caller may not send [any] additional robocalls and robotexts.” A “robocall” is any call made or text message sent using an autodialer, or any call using an artificial or prerecorded message.
After entreaties from a number of affected parties, including consumer groups and financial institutions, the FCC sought further comment on “ways we can modify the requirement that a caller must treat an opt-out request made in response to one type of call to be an opt-out request for all types of calls.” As a result, in its recent October 1 Report and Order, the FCC made the following substantive modifications to its TCPA consent revocation rules.
Modification of “revoke all” rule: Relaxation for informational calls/texts – Callers will now be allowed to “interpret a consent revocation as applying only to the specific category of informational robocalls to which the revocation was directed not all robocalls.” The FCC concluded that “a requirement to treat a revocation request made in response to one type of informational robocall as applicable to all future robocalls unduly restricts consumers’ ability to receive other wanted calls.” So, for example, revocation of consent to receive account balances will not revoke consent for fraud alerts.
Status quo for telemarketing robocalls – The FCC stressed that this relaxation applied to “only informational robocalls” (i.e., calls that do not contain an advertisement or constitute telemarketing). Revocation requests “that contain an advertisement or constitute telemarketing revoke consent to all future robocalls containing an advertisement or that constitute telemarketing from that caller.” Furthermore, the Report and Order reminded callers that a residential subscriber’s do-not-call request “shall apply to the particular entity making the call (or on whose behalf a call is made), as well as affiliated entities if the consumer reasonably would expect them to be included.”
Designation of exclusive means of consent revocation – A caller may now designate an exclusive means to revoke consent, instead of requiring callers to honor all requests made “using any reasonable means.” The Commission specifically allowed such designation of any of the following three revocation request methods: request (a) made using an automated, interactive voice or key press-activated opt-out mechanism on a call; (b) using the words “stop,” “quit,” “end,” “revoke,” “opt out,” “cancel” or “unsubscribe”; (c) sent in reply to an incoming text message or pursuant to a website or telephone number designated by the caller to process opt-out requests. The caller must clearly disclose the designated method for revocation on the call or in the text.
If none of these three methods are prescribed, the caller must continue to process revocation requests made “in any reasonable manner.” Furthermore, this rule modification does not alter the existing opt-out methods specified in the FCC rules for calls made pursuant to an exemption, or that include an advertisement or constitute telemarketing. Callers subject to these requirements (see, e.g., 47 CFR 64.1200(b)(3)) must comply with these obligations and use the opt-out methods specified in the rules.
Other FCC actions: Fraud alert and TCPA rule review – The FCC amended the rule for financial institutions, now allowing exempted communications when the wireless number is obtained “from a reliable source.” These include a telephone number (a) supplied by a spouse or other family member who is authorized to be on the account, (b) obtained when the customer calls the institution or (c) is included in records obtained from other financial institutions. Finally, the Report and Order delegated the Consumer and Governmental Affairs Bureau to conduct a review of the TCPA rules, which have grown increasingly “lengthy and dense.” But no substantive changes will be involved.
Potential further substantive changes: The further notice of proposed rulemaking – The accompanying further notice of proposed rulemaking seeks “further comment on additional revisions that can ensure that the rules continue to evolve with changes in technology and industry practices.” To that end the Commission seeks comments on the following:
Timeframe for honoring revocation requests: Shorten? – The deadline is currently no more than 10 business days after receipt of the request. The Commission seeks comments on shortening, perhaps to seven business days.
Two-way texting required?: Eliminate provision allowing no return texting? – Eliminating the rule provision that allows text senders to use a texting protocol that does not allow consumers to revoke consent by return text.
Revoke all method: Revisit? – Whether callers should be allowed to treat a revocation request as applying to the type of call that prompted the revocation only if the caller provides “a method to revoke consent for all types of messages for which consent is required”; and should such a “revoke all” mechanism be automated.
Affiliates and separate lines of business or divisions: Application of TCPA consent and revocation provisions? – Clarification of the application of the TCPA ‘s consent and revocation requirements where an entity operates through separate affiliates, lines of business or divisions.
Effective and comment dates – The Report and Order provisions become effective 30 days after publication in the Federal Register, which has not yet occurred. The comment dates for the Further Notice are 30 days (initial) and 60 days (reply) after such publication.
Reading the regulatory tea leaves – The Commission is not through with the “revoke all” rule yet, although it may take a different form for informational calls and texts. Additional tightening of revocation implementation timing and elimination of one-way texting may be forthcoming. The Consumer and Governmental Affairs Bureau review of the TCPA rules in general bears watching. Telemarketing robocalls and robotexts will continue under the “revoke all” umbrella. More may follow.
