The Federal Communications Commission’s (“FCC” or the “Commission”) recently adopted a new Opt-Out Rule under the Telephone Consumer Protection Act (“TCPA”), which will take effect on April 11, 2025. Currently, the TCPA requires consumers to provide their prior express consent to a telemarketer before it may send the consumer any automated text messages or calls, i.e., “robocalls” and “robotexts.” The new Opt-Out Rule aims to clarify the process through which consumers may revoke their consent to receive these types of communications. The Rule demands immediate attention from businesses across all industries, especially those engaging in marketing through automated telecommunications, as it becomes effective starting April 11, 2025.
Once the Opt-Out Rule becomes effective, texting and calling parties will be required to adhere to several key practices regarding automated text messages and telemarketing opt-out requests, including to:
- Apply opt-out requests for marketing messages to any further marketing communications.
- Extend a consumer’s opt-out request for informational messages to any further informational communications as well as any future marketing communications, excepting emergency communications.
- Accept and process any “reasonable” form of opt-out request from consumers, including voice requests or responses to text messages using keywords such as “STOP” or “UNSUBSCRIBE.”
- Honor all opt-out requests within a maximum of ten (10) business days of receipt.
The new Opt-Out Rule will allow telemarketers to send a one-time text message to confirm a consumer’s opt-out request; however, the text message must meet specific requirements. It may not include marketing or promotional material. Moreover, the confirmation text message must be sent within five (5) minutes of receipt of the consumer’s opt-out request to be presumed to fall within the scope of the consumer’s then-existing prior express consent.
Under the new Opt-Out Rule, if a consumer requests to opts out from marketing communications, on the one hand, the texting party may still send informational messages, unless the consumer has specifically requested to opt out from informational messages. For opt-out requests received in response to informational messages, on the other hand, the Rule stipulates discontinuing all non-emergency communications, including marketing communications. The sender must recognize and process the recipient’s opt-out request irrespective of the mode of communication used to convey such request. This includes honoring unconventional consent revocation methods beyond those prescribed by the telemarketer, so long as the opt-out request is “reasonable.”
While some guidance has been provided by the FCC as to what constitutes “reasonable” means of revoking consent – i.e., the words “STOP, QUIT, END, REVOKE, OPT OUT, CANCEL, and UNSUBSCRIBE” sent in reply to a text message – the FCC has cautioned that such guidance is not exhaustive and does not exclude the use of other words and phrases to revoke consent.
The potential implications of the new Opt-Out Rule have prompted discussions among various industry players, including financial services represented by several major associations, the American Bankers Association, America's Credit Unions, the American Financial Services Association, and the Association of Credit and Collection Professionals. The associations have argued that the new Rule’s rapid implementation timeline imposes significant operational challenges, and have suggested a delay in enforcement to better prepare for compliance; however, the current April 11, 2025 deadline still remains in effect.
With the compliance deadline soon approaching, businesses should:
- Become familiar with the new Opt-Out Rule and adjust internal systems and procedures to ensure timely acknowledgment and implementation of opt-out requests across all communication channels and content categories.
- Train staff comprehensively about identifying and handling consent revocation correctly.
- Consult with seasoned TCPA counsel on how to ensure your business’s policies and procedures comply with the new Opt-Out Rule.
Understanding and complying with the new Opt-Out Rule is crucial for businesses conducting telemarketing through texts or automated calls. Failure to comply may result in extensive litigation, as the TCPA allows for class action suits, which provides consumers with a private right of action with strict statutory damages of $500-1,500 per violation per consumer, with no requirement to prove actual injury. Although there has been some industry pushback, no legal challenges to the new Rule yet exist, and while a legal challenge remains possible, businesses should develop and maintain effective communication management practices to ensure all opt-out requests are processed and documented properly.
