FCC Considering TCPA Liability for Follow-up Texts

TCPA Connect

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Does a follow-up text in response to a consumer’s request to opt out where the sender communicates on multiple issues run afoul of the Telephone Consumer Protection Act (TCPA)?

The Federal Communications Commission (FCC) is considering the issue as a result of a petition from Capital One Services seeking a declaratory ruling.

To handle customer text messages, Capital One uses Eno, an intelligent assistant that allows customers to manage their accounts, ask questions and receive information through text messages, the company explained. Eno enables customers to seek and receive several different categories of information via text message, such as fraud alerts, payment reminders, low balance or available credit notices, and overseas transaction alerts.

This means that if Eno transmits a message to a customer, who then replies STOP, it may not be clear whether the customer wants to opt out of all text messages from Capital One or only the category of text message to which the consumer replied STOP, the company said.

To clear up any confusion about potential TCPA liability, Capital One asked the FCC whether it is permissible to send a follow-up text to determine the scope of the consumer opt-out.

The company provided an example. To a consumer who asked, “What’s my balance?,” Eno replied, “The current balance of your card ending in 5523 is $199.87. Would you like to see when your bill is due?” The consumer replied “Stop it” and Eno responded, “STOP only low balance or all Eno texts? To STOP only low balance but not other Eno texts, REPLY 1. If you do not reply, all Eno texts will STOP.”

In support of this communication being legal under the TCPA, Capital One pointed out that the FCC has stated that a sender may confirm a recipient’s consent revocation request without violating the statute by transmitting within a short period a one-time opt-out confirmation message.

“In the context of a text message program that transmits more than one category of messages, it makes intuitive sense that a text message sender may clarify the scope of a recipient’s consent revocation in an opt-out confirmation message without violating the TCPA, provided that the clarifying opt-out confirmation message does not contain marketing or promotional content or seek to encourage the recipient to reconsider the opt-out request,” according to Capital One’s petition.

To help with its decision, the FCC accepted public comment on the issues raised in the petition until December 9.

To read Capital One’s petition, click here.

To read the FCC’s request for comment, click here.

Why it matters: A ruling from the FCC on the issue has implications for any business that uses text messages to communicate with consumers for multiple purposes, such as a doctor’s office that sends appointment reminders and billing statements.