Big piece of news in the SMS marketing world this week: on November 30th the Federal Communications Commission (FCC) issued a Declaratory Ruling that confirmatory STOP text messages do not violate the Telephone Consumer Protection Act (TCPA).

You can read more details about this decision from the Mobile Marketing Association and AdWeek, but here is the nitty gritty:

1) At Odds: The TCPA And The Mobile Industry
The TCPA restricts the use of auto-dialers to make non-emergency calls without consent. In layman’s terms: “conduct telephone marketing only if you have explicit consent.” The TCPA passed in 1991, years before text messaging and text message marketing became widespread communication channels. However, because the TCPA covers telephones, text messaging falls under its purview.

Meanwhile, with text messaging’s increasing popularity, mobile marketing industry regulators had to decide on a list of guidelines in order to ensure that SMS marketing remained spam free. One of these guidelines required companies send a confirmation message after a consumer opted out of an SMS marketing program (i.e. a message delivered immediately after a consumer texted STOP to a short code).

2) Resulting Confusion:
Some folks felt that these confirmation messages, known colloquially as “STOP confirms,” violated the TCPA, since they constituted non-emergency calls sent without explicit consent. Others felt that STOP confirms were essential, as they provided concrete evidence of a successful opt-out.

The conflicting camps put brands and vendors between the proverbial rock and hard place. Violating the TCPA resulted in monetary fines. Violating industry regulations resulted in restrictive sanctions from mobile marketing’s governing bodies.

3) The FCC Ruling:
Clearly, the TCPA and mobile marketing industry needed to find solid ground. And that’s exactly what this latest ruling represents: brands and vendors can now freely send opt-out confirmation messages without risking penalties from the FCC.

Going forward, it will be interesting to track how this ruling impacts the mobile marketing industry. We’ll be sure to keep you informed, and please let us know if you have any other questions about STOP confirms by posting to the comments.

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2 Responses to FCC Rules That Confirmation Opt-Out Messages Do Not Violate TCPA

  1. KaneRussell says:

    Thought this direct info from the case was insightful and interesting:

    As the court in Ryabyshchuck v. Citibank, 11-CV-1236 – IEG (WVG) (S.D. Ca. Oct. 30, 2012) noted, “a simple, confirmatory [text message] response to plaintiff-initiated contact can hardly be termed an invasion of plaintiff’s privacy under the TCPA. A finding to the contrary would stretch an inflexible interpretation beyond the realm of reason.

    The FCC, in a declaratory ruling issued in November of 2012, generally agreed with the idea that confirmatory texts do not violate the TCPA, but included some important caveats in its ruling, including that (1) prior express consent to receive texts messages is required; (2) confirmatory texts must “merely confirm the consumer’s opt-out request and do not include any marketing or promotional information”; (3) confirmatory texts are to be the only additional messages sent to customers after they opt out; and (4) confirmatory texts should be sent within five minutes of the opt out request, as “the longer [the] delay [in sending confirmatory texts], the more difficult it will be to demonstrate that such messages fall within the original prior consent.” Significantly, the FCC did not entertain the petitioner’s argument that confirmatory texts do not violate the TCPA if an autodialer is not used to send them. Rather, the FCC implied in its order that obtaining prior express consent to receive text messages means confirmatory texts may be sent with or without an autodialer.

    Source: http://apps.americanbar.org/buslaw/blt/content/2013/05/article-01-smith.shtml

  2. KaneRussell says:

    Here’s some more info related to this ruling – you cannot send a menu to people who opt out of a mobile program. These “STOP Menus” are no longer allowed by all U.S. carriers – essentially all opt-out keywords need to be treated as “STOP ALL” and STOP menus are not allowed. This change became effective September 9 2013, even though the FCC ruling is officially scheduled to go into effect on October 16, 2013.

    For the full FCC order, you can go to:
    http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-21A1.pdf.

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