FCC Rules That Opt-Out Confirmation Text Messages Do Not Violate The TCPA

Waves of class actions have recently alleged that the delivery of an opt-out confirmation text message violates the Telephone Consumer Protection Act ("TCPA"). Thus, a Federal Communications Commission ("Commission") Declaratory Ruling finding that a single opt-out confirmation text does not violate the TCPA comes at a crucial time.¹ The Commission's decision, issued on November 29, 2012, is a welcome relief to companies facing these cases.

The TCPA generally permits the delivery of text messages to consumers after receiving prior express consent to do so. Numerous plaintiffs have taken the position that an opt-out confirmation message violates the TCPA because it is delivered after consent has been revoked. In its ruling, however, the Commission found that a consumer's prior express consent to receive a text message can be reasonably construed to include consent to receive a final, one-time message confirming that the consumer has revoked such consent. Specifically,