FCC Seeking Comments On Potential TCPA Spam Texts Rule Change

The FCC is taking comments about potential TCPA rule changes which would let companies send spam texts to clarify an opt out request.

The Commission is seeking comments following a petition from Capital One Services LLC. The company argues that a sender of text messages is not in violation of the Telephone Consumer Protection Act (TCPA) if they send follow-up messages after a consumer opts out of receiving them.

Capital One claims these messages reportedly help the sender clarify the scope of a consumer’s opt out request and confirms their request. The company says that these messages should not count as spam texts under TCPA.

Capital One argues that their petition is supported by the FCC’s 2012 SoundBite Declaratory Ruling. In this ruling, the FCC reportedly confirmed that one time text messages confirming an opt out request are not in violation of TCPA.

Consumers and members of the industry can now submit comments to the FCC if they have an opinion on the matter. In order to have their comments reviewed by the FCC, individuals need to submit their comments by Dec. 9, 2019, and any reply comments by Dec. 24, 2019.

Current TCPA Rules on Spam Texts

TCPA was passed by Congress in 1991 in an attempt to crack down on harassing telemarketing communications. At that time, the most pressing violations were phone calls or junk faxes. Since the law’s original passing, TCPA has been amended numerous times to keep it relevant and applicable.

One added protection was the development of the national Do Not Call registry. This is a nationwide list of phone numbers whose holders have indicated that they do not want to be contacted with any telemarketing communications, including spam texts. Many companies have internal Do Not Call lists, but the national registry is supposed to be honored by all businesses.

Another of the added protections has been the defense against unsolicited text messages. Spam texts are illegal under TCPA if consumers have not consented to receive these messages. According to the FCC, “prior express written consent” is required for any advertising texts sent en masse with an autodialing machine, also known as robocalling.

Even if a consumer has consented to receiving telemarketing text messages, businesses are required to include an interactive opt out mechanism in each of their messages. This mechanism is intended to let consumers stop the text advertisements at any point.

The proposed rule change would allow businesses to send follow up messages to consumers after they opt out. While this may be beneficial for businesses, consumers may not want businesses to have further opportunity to text them after they’ve asked them to stop.

If businesses are found to have violated TCPA with spam text messages, they may be forced to pay forfeiture penalties up to $18,936 per violation to the FCC in addition to any penalties from state authorities.

Consumers who receive the violating text messages are also able to take action against businesses. If a TCPA text message lawsuit or class action lawsuit is successful, businesses may be forced to pay up to $1,500 per violation.  Class action TCPA lawsuits have run into the millions against violating companies.

This article is not legal advice. It is presented
for informational purposes only.