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Financial Services Law Insights and Observations

FCC seeks comment on whether an opt-out clarification text violates TCPA

Agency Rule-Making & Guidance FCC TCPA RFI

Agency Rule-Making & Guidance

On November 7, the FCC released a public notice seeking comment on a petition filed by a financial institution requesting a declaratory ruling on whether a company can send a follow-up clarification text message in response to an opt-out message from a consumer without violating the TCPA. More specifically, in connection with informational texts that the consumer previously consented to receive, the institution desires to “discern the scope of that opt-out,” because “[s]ome customers want to opt-out of all texts; others merely want to opt-out of the specific category of text message alert they received most recently.” The institution notes it filed the petition “in an abundance of caution” in light of the highly technical nature of TCPA compliance, and that it believes the FCC’s 2012 ruling in SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling is clear that a sender may clarify in an opt-out confirmation message the scope of the consumer’s request without violating the TCPA as long as the message does not contain marketing or promotional content or seek to encourage or persuade the recipient to reconsider the opt-out.

Comments on the FCC’s public notice are due by December 9, with reply comments by December 24.

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