Consumers are completely fed up with unwanted robocalls. They are complaining in record numbers to the Federal Communications Commission and the Federal Trade Commission about the billions of robocalls and texts that are made on a daily basis. Last year alone, there were almost 4 million complaints to those two federal agencies about unwanted calls and texts – many of these complaints were about calls and texts received by consumers after they repeatedly requested that they stop. Similarly, many of the cases in litigation involve thousands of unwanted calls or texts sent to individuals, even after repeated requests to the sender for these calls and texts to stop. Consumers only go to lawyers to initiate litigation after all else fails: The litigation is a direct result of consumers’ frustration with these callers.
The Telephone Consumer Protection Act is clear, and really, quite simple to follow: Every robocall and text to a cell phone is legal only if it is made with consent (except in an emergency). This 25-year-old federal law simply requires that these callers ensure that they have consent before they send calls or texts, and that the consent has not been revoked. A 2015 FCC order clarified that consumers can revoke consent for robocalls and texts to their cell phones by “any reasonable means.” Unlike what has been implied – that does not include revocation by “unreasonable” means.
The Mobile Marketing Association publishes clear industry best practices that mobile marketers can easily implement to enable consumers to revoke consent. Mobile marketers using those best practices offer simple opt-out mechanisms for consumers to revoke consent. By following those best practices, mobile marketers can virtually ensure that they will receive all revocations, and thus be protected from TCPA litigation.
For example, the MMA standards require that every automated text message sent to consumers must include instructions on how consumers can revoke consent such as, “Reply STOP to end participation.” This allows a consumer to send a text message back to the mobile marketer. The FCC has issued specific regulations for opting-out, and even allows a confirmation text to be sent once a subscriber sends a STOP, END or CANCEL message. Hundreds of companies that perform text-based mobile marketing programs on behalf of branded companies use these standards safely.
When the mobile marketer’s computerized program receives a message containing the keyword “STOP,” it is required to remove from the program the cell phone number associated with the received message. Incoming STOP messages can be processed by the marketer or by the SMS aggregation companies providing connectivity. Computerized stop-call lists can be easily developed. These ensure that text messages are not sent to consumers who explicitly do not wish to receive them.
It is neither the fault of the law, nor the FCC, that there is a growth in TCPA litigation. Lawsuits are filed because consumers are fed up and want to stop the tsunami of robocalls and texts. Marketers are being sued under the TCPA because they are not following the law or these standard best practices.
Margot Saunders is an attorney with the National Consumer Law Center, a public interest law firm representing low-income consumers, with offices in Boston and Washington. Randall A. Snyder is an expert in telecommunications and holder of several patents in telecommunications technology.
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