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The FCC will adopt new rules that codify in law how senders should deal with opt-out requests. Last summer, on behalf of the MEF, I coauthored a petition to the FCC about a pragmatic way forward. The good news is that the Commission, for the most part, agrees, but there is still one worrisome aspect.
What are the new rules?
Let’s use a marketing text message conversation to walk through the FCC’s prescription.
Incoming text to subscriber: “Get 20% off your next pizza order, come in today!”
Scenario 1: In-Channel Opt-Out Request
If a consumer responds with: “Stop,” “Quit,” “End,” “Revoke,” “Cancel,” or “Unsubscribe” via text, then the business has twenty-four hours to comply with the opt-out request.
Scenario 2: Out-of-Channel Opt-Out Request
If a consumer decides to call a phone number, leave a voicemail, send regular mail, or call a customer service representative, then the business has ten days to comply.
If a consenting consumer, for example, calls the phone number on the back of a product label to opt out of a text they got from the brand, the process requires that the centralized call center A) understand the urgency of the request, B) understand the context of the request, C) represent the relevant department within the business. To do all this within a twenty-four-hour period is a recipe for failure to comply.
Without the ten-day breathing room, many serial TCPA plaintiffs may play gotcha games with unsuspecting businesses where they send a letter to the company’s registered offices and then just bide time and let organizational mistiming create a basis for a TCPA lawsuit.
We asked for thirty days but are happy with ten! It is a good compromise.
Scenario 3: The Optimistic Opt-Out Interpretation
A consumer responds with “Stop,” and you respond with “You have been removed from our list. If you change your mind in the future, please let us know.” The FCC disallows this. You are only allowed to confirm removal and not provide any incentives for them to get back on the list. This is excessive.
An SMS conversation is a real-life chat. In the physical world, if a consumer came to my pizza store and claimed they’d never buy from me again, I would hold out hope that they might change their mind. I would, therefore, offer to comp their next order or offer a free drink—should they ever decide to come back. I know many restaurants use this as a tactic to help upgrade their bad online reviews.
Every business sender knows an SMS opt-in is a hard-earned asset. A consumer may opt out for a myriad of reasons, and the business should be given reasonable avenues to keep that opt-in. Unfortunately, the FCC disagrees.
Scenario 4: The Subjective Opt-Out
A consumer responds with something that some may consider to be an opt-out: “pls tk me off yr list,” “who dis?” or the more colloquial “f**k you/off” are some examples.
In such situations, the Commission or the court will, “as the finder of fact,” take into account “a totality of circumstances” to see if the business had consent to send the message and if they should have interpreted the response as a revocation of consent.
This is a slippery slope on a melting iceberg.
If the matter makes it to the Commission, it’s typically as part of an Enforcement Bureau (EB) matter. If you ever get an EB notification, know you’re in trouble. It’s like Charlie Munger used to say: “If a cop follows you for 500 miles, you are going to get a ticket.” An EB notification is the FCC’s top enforcer following you for much longer than you may know. No matter how right you are, there is no coming away unscathed.
TCPA is the only way Scenario 4 makes it to court. What makes TCPA powerful is not the heavy per-message fine but that a plaintiff is allowed to fight for others “similarly situated.” Joe Plaintiff is allowed by law to fight for others who may have been wronged just like him regardless of their desire. The only way for Joe to find out others like him is to force the defendant to share data via discovery.
Discovery is a way to get to the facts, but the process is also a great way to create bureaucratic headaches for the defendant. Not only does the plaintiff’s attorney ask for reams of documentation but they also seek to depose the Person(s) Most Knowledgeable (PMK) on operations of the company.
The PMK in Depositions
I have over forty hours of TCPA deposition experience. Luckily all the cases were either dismissed by the court or settled for fractions of the amounts initially sought. However, not one deposition ended with the plaintiff’s attorney saying “Thank you, Mr. Thinakaran, for helping us understand how wrong we were. The education was worth the travel costs, the court-appointed stenographer, and the trouble to both parties. We will be on our merry way. Please let me know where to send the holiday card.”
These depositions are marathon, straight-for-the-gut, one-way boxing sessions and the plaintiff’s way to get you to say what they want you to say. Your first hope is to have a spectacular defense counsel in your corner. But most importantly, know your facts cold, say them economically and declaratively, and be unafraid to say “I don’t know.” The last one is tricky. As the PMK, you can feel pressured to know it all, but don’t let it corner you into saying something you’re not comfortable saying.
Scenario 4’s Subjectiveness
Subjective situations are a minefield in depositions. When the opt-out is a judgment call like Scenario 4 is, both parties can argue endlessly as to why something is or isn’t an opt-out until one side, looking at rising lawyer fees, says, “OK, how much for you to go away?” Again, not what the law intended, but it is what typically happens. The FCC’s ruling does nothing to stop this.
Here’s a Hack: When in Doubt, Opt Them Out
One way to not get ensnared in EB or TCPA crosshairs is to be very conservative with opt-outs and monitor all responses. Implement a “When in doubt, opt them out” policy like I said in my 2019 MobileConnect keynote [presentation]. The risk to the organization and to the outreach medium is too high.
Finally
Before 2012, I viewed regulatory rulemaking as a more Spock-like, clinical, cold, logical process that was someone else’s problem. I just needed to focus on my business. Thanks to scaling challenges and sage advice from aforementioned counsel, I realized that rulemaking is more of a Klingon-esque cacophonous process full of adversarial intrigue and emotional pitches, where the loudest voice gets attention first. The only way to make a difference is to jump in, be bold, and be heard.