Wrong Number! D.C. Circuit Rules on Challenges to the FCC’s 2015 TCPA Order Part II: Revocation of Consumer Consent
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Robocalls - everyone has strong feelings about them. In many cases robocalls, or automated calls and text messages, serve a useful function (and not just for telemarketing). But unfortunately, they are often unwanted and/or fraudulent, and they are the largest source of consumer complaints to the FCC. In response, the FCC in 2015 issued a Declaratory Ruling and Order ("2015 Order") intended to broaden the number of robocalls subject to the FCC's enforcement powers under the Telephone Consumer Protection Act (TCPA). (Read our past blog coverage on the FCC's 2015 Order if you want to brush up on the particulars.) On appeal, though, the D.C. Circuit recently rejected several aspects of the 2015 Order, including the FCC's controversially broad definition of "automatic telephone dialing system" (ATDS or autodialers) and its one-call safe harbor for calls made to numbers that have been reassigned to a new subscriber. On the other hand, the court upheld the FCC's 2015 holding that callers may revoke their consent to calls in any reasonable manner. The ATDS and safe harbor issues were remanded back to the FCC, which will likely address the issues in new rulemaking proceedings, including a proceeding opened on March 23 seeking comments on ways to address the problem of unwanted calls to reassigned numbers.
In our four part series, we break down the controversy over the definition of "autodialer," the means by which consumers can revoke their consent to be called, the issue of consent for calls to telephone numbers that have been reassigned to new subscribers, the FCC's new proceeding on using databases to minimize the impact of reassigned numbers, and what impact all of this might have on pending and future TCPA litigation.
Below is part two of our series. (If you missed it, go back and read part one here.)
2. Revocation of Consumer Consent
Say that you have consented to receive telemarketing calls or texts from Business A, but a month later you change your mind. Can you revoke your consent? If so, what does the TCPA require you to do to notify Business A that your consent has been revoked?
The FCC addressed these issues in its 2015 Order. Noting that the TCPA itself was silent on the issue of revoking consent, the FCC chose to allow such revocation, as that would be consistent with the pro-consumer bent of the statute. But given that Business A must be notified of the revocation, how should that be done? Possible means suggested by commenters included: 1) in writing at the mailing address designated by the caller; 2) by email to the email address designated by the caller; 3) by text message sent to the telephone number designated by the caller; or 4) by facsimile to the telephone number designated by the caller.
The FCC Order instead ruled that callers cannot designate the exclusive means by which consumers must revoke consent. Rather, the FCC ruled that consumers "may revoke consent in any manner that clearly expresses a desire not to receive further messages ". Consumers have a right to revoke consent, using any reasonable method including orally or in writing. Consumers generally may revoke, for example, by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities."
Many commenters were particularly concerned about oral revocations, as that could put litigation defendant callers at a disadvantage in "he said, she said" situations regarding revocation. The FCC disagreed, and stated that businesses should "maintain proper business records tracking consent." The Commission explicitly put the burden on businesses to maintain documentation of consent or revocation, rather than shifting the TCPA compliance burden onto consumers to prove that they had withdrawn consent. Of course, this probably had the effect of increasing TCPA litigation.
On appeal, the D.C. Circuit upheld the FCC's approach. The Court rejected the argument that the lack of standard revocation methods is overly burdensome on businesses, though it noted that they will have "every incentive to avoid TCPA liability by making available clearly-defined and easy-to-use opt-out methods." The Court did acknowledge the FCC's holding that standard revocation methods may be established by mutual contract between businesses and consumers; they just may not be established unilaterally by the caller. So, businesses must be mindful of this in the initial task of obtaining consent from consumers.
Stay tuned for the next part in our series where we'll focus on what's for the problem of reassigned numbers. If you have questions about TCPA compliance, please call us at (703) 812-0400 or visit us at www.fhhlaw.com.