Privacy & Cybersecurity Law Blog

On November 29, 2012, the Federal Communications Commission (“FCC”) issued a declaratory ruling finding that certain text messages businesses send to confirm a consumer’s request to opt out of text message programs do not violate a federal prohibition on sending text messages without prior express consent. This prohibition has spawned class actions against companies that have followed the provisions in the Mobile Marketing Association’s U.S. Consumer Best Practices and other industry guidelines that require companies to send a confirmatory text message in response to a consumer’s opt-out request. The FCC’s finding is limited to sending confirmatory text messages under the following conditions:

• The consumer previously had provided the legally-required form of opt-in consent (which in some cases must be written consent that complies with certain formalities) to receive text messages from the sender.
• The confirmatory text message merely confirms the opt-out request and does not include any marketing or promotional information, though contact information may be included in some circumstances.
• The confirmatory text message is sent within five minutes of the consumer’s opt-out request.
• After the confirmatory text message, no further text messages are sent to the consumer.