TCPA and Revocation of Consent – Who? What? Where? How?

Let’s say you are enrolled in an airline sky miles program, and you give them permission to call or text you on your cell phone if they need to contact you about your upcoming flights.  But you decide you no longer want to get those texts and cell phone calls.  According to the new Federal Communication Commission’s (FCC) Declaratory Ruling relating to revocation of consent the next time you are on a flight, you can say to the flight attendant during beverage service “Hello, my name is John Doe and my phone number is 612-555-1212 and I no longer want texts or phone calls to my cell phone from your airline.”  If they call or text you after that, you can sue them under the Telephone Consumer Protection Act (TCPA).

While this may seem ridiculous, this is exactly the issue with the revocation section in the FCC’s July 10, 2015 Declaratory Ruling (https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order) (“Ruling” or “Rule”). Section 3(b) of the ruling, which deals with revocation of consent is so broad that it will be difficult for some companies to comply with it, especially the larger companies with offices across the U.S. With the way the rule is written, there is so much room for error that many companies who have consent to contact a consumer on a cell phone will simply stop doing so altogether. This will ultimately result in consumers who WANT to be contacted via cell or a text message to not be able to get those touch-points going forward.

But before we dive into renovation of consent – let’s talk a bit about getting the consent in the first place. In Section 3(a) of the FCC’s July 10, 2015 Declaratory Ruling, the FCC discusses consent:

• Although prior express consent is required for autodialed or prerecorded non-telemarketing voice calls and texts, neither the Commission’s rules, nor its orders, require any specific method by which a caller must obtain such prior express consent. (Paragraph 49 of the ruling)
• Persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary. (Paragraph 49 of the ruling)
• Regardless of the means by which a caller obtains consent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent. (Paragraph 47 of the ruling)
• Porting a telephone number from wireline service to wireless service does not revoke prior express consent. (Paragraph 54 of the ruling) (Although you didn’t need consent to call the landline in the first place…so I’m not sure why they even note this in the rule.)
• The Commission recently held that the TCPA does not prohibit a caller from obtaining a consumer’s prior express consent through an intermediary, but the Commission emphasized that an intermediary can only convey consent that has actually been obtained, and cannot provide consent on behalf of another party. (Paragraph 49 of the ruling)

So the FCC is pretty clear about how you can obtain the consent in the first place. But what about revocation? Now, that’s a different story. The tables are turned against businesses when it comes to how they must allow consumers to revoke their consent. In paragraph 47 of the ruling, the FCC states, “Additionally, we clarify that a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur.”

In their petition to the FCC, Santander Consumer USA, Inc. (Santander) specifically asks if they can dictate the ways in which consumers may revoke consent. In paragraph 55 of the ruling the FCC states, “Santander requests that the Commission clarify that the caller may designate the exclusive method or methods consumers must use to revoke “prior express consent” previously granted to the caller. Santander offers the following possible revocation methods: (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; (4) by facsimile to the telephone number designated by the caller; and/or (5) as prescribed by the Commission hereafter as needed to address emerging technology.”

The Commission responds to the request in paragraph 63 by saying, “We next turn to whether a caller can designate the exclusive means by which consumers must revoke consent. We deny Santander’s request on this point, finding that callers may not control consumers’ ability to revoke consent.”

In paragraph 64, the Commission goes on to say, “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. We find that in these situations, callers typically will not find it overly burdensome to implement mechanisms to record and effectuate a consumer’s request to revoke his or her consent.” Again, hello Mr. President/CEO – I revoke my consent.

Personally, I’m on the road a lot for my job, so my cell phone is my lifeline to many things such as alerts on my credit cards, confirmation of doctor appointments, confirmation of automated payments received, etc. I’m sure I’m not the only one out there who will be negatively impacted if businesses stop texting consumers just because the whole consent and revocation of consent situation is too burdensome.

So – what can you as a business do to continue to serve your customers who want cell phone calls and text messages? Here are a few best practices:

• You must be able to prove that you have consent in the first place, note it in your system with the method you received the consent.
• Have rules in place to track consent
  • Oral consent is tricky – have recording mechanisms in place to record consent
  • Scan in written consent
  • Note consent that was transferred from your creditor customer
  • Have rules in place to track revocation of consent
    • Have all options covered for consumers to revoke consent
      • Orally
      • In person
      • Regular mail
      • Email
      • Fax
      • Text (if you text with the consumer)
      • Contact screen of your web site
      • Any other method you can think of
      • Make sure everyone in your company is aware of consent revocation – no matter who is on the phone, in front of a consumer in person, opening mail, receiving email, monitoring your web site’s inbox, etc., they have the obligation to track/record the revocation of consent on your system. Take action immediately to remove those cell phone numbers from your automatic dialing system and note your account of the revocation.
      • If you have multiple accounts for the consumer and the consumer does not specify which account they are calling about mark them all as having consent revoked – don’t take any chances.

Remember, the consumer attorneys are out there attending the same webinars and conferences you are, and they’re reading the same articles in the trade publications too. Don’t let your company be the one that is made an example of when it comes to consumer consent revocation. Although the rules are burdensome, if you have a plan in place and documented, and you can prove you are acting on that plan, you will be ahead of the game.