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Declaratory Ruling re SoundBite TCPA Petition

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Released: November 29, 2012

Federal Communications Commission

FCC 12-143

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Rules and Regulations Implementing the
)
CG Docket No. 02-278
Telephone Consumer Protection Act of 1991
)
)

SoundBite Communications, Inc.
)
Petition for Expedited Declaratory Ruling
)

DECLARATORY RULING

Adopted: November 26, 2012

Released: November 29, 2012

By the Commission: Commissioner Pai issuing a statement.

I.

INTRODUCTION

1.
In this Declaratory Ruling, we grant a request by SoundBite Communications, Inc.
(SoundBite) and confirm that sending a one-time text message confirming a consumer's request that no
further text messages be sent does not violate the Telephone Consumer Protection Act (TCPA) or the
Commission's rules as long as the confirmation text has the specific characteristics described in the
petition.1 Our ruling will allow organizations that send text messages to consumers from whom they have
obtained prior express consent to continue the practice of sending a final, one-time text to confirm receipt
of a consumer's opt-out request--a widespread practice among businesses, non-profit organizations, and
governmental entities, which many parties in this proceeding, including a consumer group, assert is good
consumer policy.2 We emphasize that our ruling applies only when the sender of text messages has
obtained prior express consent, as required by the TCPA and Commission rules, from the consumer to be
sent text messages using an automatic telephone dialing system or "autodialer."3 Today's ruling ensures
that wireless consumers will continue to benefit from the TCPA's protection against unwanted autodialed
texts, while giving them certainty that their opt-out requests are being successfully processed.

II.

BACKGROUND

A.

Telephone Consumer Protection Act

2.
In 1991, Congress enacted the TCPA in an effort to address a growing number of
telephone marketing calls and certain practices thought to be an invasion of consumer privacy and a risk


1 The TCPA is codified at section 227 of the Communications Act of 1934, as amended. See 47 U.S.C. 227. The
Commission may issue a declaratory ruling "terminating a controversy or removing uncertainty." 47 C.F.R. 1.2.
2 See, e.g., Consumer Action Comments at 2; MMA Comments at 1-2; Verizon Comments at 7; American Bankers
Reply Comments at 1-4; Neustar Reply Comments at 4; see also Letter from Monica S. Desai, Counsel for
SoundBite, to Marlene H. Dortch, Secretary, FCC, dated June 8, 2012, filed in CG Docket No. 02-278.
3 The Commission requires prior express consent to be obtained in writing for autodialed telemarketing calls made
to wireless numbers. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG
Docket No. 02-278, Report and Order, 27 FCC Rcd 1830 at 1837, para. 18 (2012) (2012 Robocalls Order). For
non-telemarketing calls, the required consent may be obtained orally or in writing. Id. at 1841, para. 28.

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to public safety.4 In relevant part, the TCPA and our implementing rules prohibit the use of autodialers5
to make non-emergency calls without prior express consent to, among others, any telephone number
assigned to mobile telephone services.6 The Commission has concluded that the TCPA's prohibition on
autodialers encompasses both voice and text calls, including short message service (SMS) calls.7

B.

SoundBite Petition

3.
On February 16, 2012, SoundBite filed a petition seeking a declaratory ruling that
sending a one-time text message confirming a consumer's request that no further text messages be sent is
not a violation of the TCPA or the Commission's rules.8 SoundBite sends text messages on behalf of a
number of companies that have obtained express consent to send texts to particular wireless subscribers.9
SoundBite asserts that wireless carriers, aggregators, and CTIA require it to follow the Mobile Marketing
Association's (MMA) best practices before they will enable and allow text message campaigns on
wireless networks.10 These best practices include the transmission of a text message to a subscriber
confirming receipt of that subscriber's request to opt-out of receiving future text messages.11 As a result,
SoundBite indicates that when a consumer sends a text message opting-out of receiving future text
messages, a one-time reply is sent back via text message to that customer confirming receipt of the opt-
out request.12
4.
SoundBite states that its one-time confirmation text messages are sent within minutes of
receipt of the opt-out request and are sent only to those consumers making an opt-out request.13
SoundBite argues that these confirmation text messages do not violate the TCPA or Commission rules.


4 See 47 U.S.C. 227.
5 Under the TCPA, the term "automatic telephone dialing system" or "autodialer" is defined as "equipment which
has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number
generator; and (B) to dial such numbers." Id. 227(a)(1). The Commission has emphasized that this definition
covers any equipment that has the specified capacity to generate numbers and dial them without human intervention
regardless of whether the numbers called are randomly or sequentially generated or come from calling lists. See
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991
, CG Docket No. 02-278,
Report and Order, 18 FCC Rcd 14014, 14092, para. 133 (2003) (2003 TCPA Order). The Commission has, for
example, concluded that the scope of that definition encompasses "hardware [that], when paired with certain
software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or
from a database of numbers," in light of, among other things, its conclusion that "the purpose of the requirement that
equipment have the `capacity to store or produce telephone numbers to be called' is to ensure that the prohibition on
autodialed calls not be circumvented." Id. at 14091-93, paras. 131, 133.
6 47 U.S.C. 227(b)(1)(A); 47 C.F.R. 64.1200(a)(1)(iii).
7 See 2003 TCPA Order, 18 FCC Rcd at 14115, para. 165.
8 See SoundBite Communications Inc., Petition for Expedited Declaratory Ruling, CG Docket No. 02-278, filed Feb.
16, 2012 (SoundBite Petition).
9 Id. at 2. SoundBite indicates that they provide text messaging services for approximately 400 end-user clients
including many banks, utilities, and retailers.
10 Id. at 3.
11 Id.; see also Mobile Marketing Association, U.S. Consumer Best Practices, Version 6.0, 1.6-4 ("When STOP, or
any of the opt-out keywords above, is sent to a program, the program must respond with an MT [mobile-terminated]
message, whether or not the subscriber is subscribed to the program"), available at
http://mmaglobal.com/bestpractices.pdf (visited July 31, 2012).
12 SoundBite Petition at 2. Consumers can simply text "STOP" or a similar message to opt-out of future messages.
Id. at 6.
13 Id. at 3.
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Specifically, SoundBite contends that it does not use an automatic telephone dialing system, as defined by
the TCPA, to send such text messages because the software used to send the confirmation text does not
have the capacity to store or produce telephone numbers to be called using a random or sequential number
generator to dial such numbers.14 In addition, SoundBite contends that, even if the confirmation texts are
considered to be autodialed calls, the Commission should nonetheless recognize a "grace period" to
effectuate opt-out requests from consumers who have provided prior express consent to receive text
messages.15 SoundBite notes that the Commission allows similar grace periods in the case of
telemarketing calls.16
5.
SoundBite also asserts that opt-out confirmations are consistent with good consumer
policy and promote the public interest.17 SoundBite notes that the MMA, in conjunction with all major
mobile carriers in the United States, emphasizes that opt-out confirmations are a consumer friendly
practice18 and that opt-out confirmation texts are widely used by both commercial and non-commercial
entities.19 Moreover, SoundBite argues that the TCPA was enacted to protect the public from unwanted
privacy intrusions and disruptions to essential public safety services caused by random or sequential
number generators and that none of these concerns are implicated by prompt and targeted confirmation
text messages.20 SoundBite indicates that, at the time it filed its petition, it was the subject of class action
lawsuits based on the transmission of confirmation text messages.21
6.
On March 30, 2012, the Commission issued a Public Notice seeking comment on the
issues raised in SoundBite's petition.22 Several comments on the petition were filed.23 The majority of
commenters, including one consumer group, support SoundBite's request.24 These commenters contend
that the transmission of such confirmation messages ensures that the consumer has evidence that the
consumer's opt-out request is being processed and that the consumer will receive no further text messages
from the sender.25 In addition, some commenters indicate that such confirmation messages provide an
important consumer protection function, especially in cases where the consumer is opting out of receiving
important informational messages, such as text alerts that prevent fraud, protect against defaults and
foreclosures, and warn about disasters,26 insofar as the confirmation messages help to ensure that it is


14 Id. at 6.
15 Id. at 4-5.
16 Id. at 4-5 ("The Commission allows telemarketers up to 30 days after an opt-out request is made to remove the
phone numbers from their systems.").
17 Id. at 7.
18 Id. at 7-8.
19 See SoundBite Comments at Exhibit A.
20 SoundBite Petition at 8-9.
21 Id. at 1.
22 See Consumer and Governmental Affairs Bureau Seeks Comment on Petition for Expedited Declaratory
Rulemaking from SoundBite Communications Inc
., CG Docket No. 02-278, Public Notice, 27 FCC Rcd 3097 (CGB
2012).
23 See Appendix.
24 See, e.g., Consumer Action Comments at 2; CTIA Comments at 3-9; Verizon Comments at 5-9; American
Bankers Reply Comments at 2-5.
25 See, e.g., Consumer Action Comments at 2; MMA Comments at 1-2; Verizon Comments at 7; American Bankers
Reply Comments at 2-3; Neustar Reply Comments at 4.
26 We note that the TCPA's restriction on the use of autodialers to contact wireless numbers recognizes an
exemption for such calls made for emergency purposes which would include disaster alerts. In these situations, such
(continued . . .)
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actually the subscriber making the opt-out request.27 A few commenters object to the petition on the
grounds that confirmation text messages may be costly to the recipients.28 These commenters also argue
that such texts violate the TCPA because, they contend, prior express consent to receive any text
messages from the particular sender is revoked by the consumer upon sending an opt-out request.29

III.

DISCUSSION

7.
We grant SoundBite's request for a declaratory ruling on somewhat different grounds
than proposed in the petition.30 In particular, we confirm that one-time texts confirming a request that no
further text messages be sent does not violate the TCPA or the Commission's rules as long as the
confirmation text has the specific characteristics described in SoundBite's petition.31 As noted above, the
TCPA and Commission rules require that the sender of autodialed text messages obtain the prior express
consent of the receiving party before sending such messages. For confirmation texts of the type
SoundBite describes, we conclude that a consumer's prior express consent to receive text messages from
an entity can be reasonably construed to include consent to receive a final, one-time text message
confirming that such consent is being revoked at the request of that consumer.
8.
In resolving SoundBite's petition, we consider whether "prior express consent" within the
meaning of section 227(b)(1)(A) is revoked when the consumer sends an opt-out request or whether such
consent extends to a text message confirming that the consumer has opted-out from further text
messages.32 As an initial matter, we note that neither the text of the TCPA nor its legislative history
directly addresses the circumstances under which prior express consent is deemed revoked. Where a
statute's plain terms do not directly address the precise question at issue and the statute is ambiguous on
the point, the Commission can provide a reasonable construction of those terms.33 In interpreting the
TCPA's restriction on calls to wireless phones, the Commission has previously looked to the House
report on what ultimately became section 227, which stated that "`[t]he restriction on calls to emergency
lines, pagers, and the like does not apply when the called party has provided the telephone number of such
(Continued from previous page)


automated calls can be made without first obtaining the consumer's prior express consent. Should a consumer
erroneously opt-out from receiving such important notifications, however, he or she would likely still find a
confirmation message useful to correct that situation.
27 See, e.g., American Bankers Reply Comments at 2-4 (noting that text messages can include important information
relating to the consumer's bank accounts, credit cards, and other useful sources of information); CTIA Comments at
10; FPF Comments at 3-4 (text messages include payment reminders, fraud alerts, account updates and other
services to protect user privacy and prevent identity theft).
28 See, e.g., NACA Comments at 6-7; Gerald Roylance Comments at 6; Joe Shields at 6.
29 See, e.g., NACA Comments at 3-4; Gerald Roylance Comments at 2-4; Joe Shields Comments at 2, 5; Robert
Biggerstaff Reply Comments at 1-3.
30 As noted, SoundBite contends that it does not use an autodialer to send confirmation messages, or alternatively
that such messages fall within a grace period to effectuate the opt-out request. See supra para. 4. We conclude,
however, that a consumer's prior express consent to receive autodialed text messages encompasses consent to
receive a final one-time text message without reaching these arguments. See infra paras. 8, 9 and 13.
31 As discussed in greater detail below, these characteristics include confirmation texts that: 1) merely confirm the
consumer's opt-out request and do not include any marketing or promotional information; and 2) are the only
additional message sent to the consumer after receipt of the opt-out request. See infra para. 11. Cf. Ibey v. Taco Bell
Corp.
, Case No. 12-CV-0583-H (WVG) (S.D. Cal. 2012) (holding, on other grounds, that "sending a single,
confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone
number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by
Congress in enacting the TCPA").
32 47 U.S.C. 227(b)(1)(A).
33 See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
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a line to the caller for use in normal business communications.'"34 The House report went on to cite as
examples of normal business communications that are "expected or desired . . . between businesses and
their customers" messages that "advise a customer (at the telephone number provided by the customer)
that an ordered product had arrived, a service was scheduled or performed, or a bill had not been paid."35
As explained in greater detail below, we find it reasonable to conclude that opt-out confirmation text
messages with the characteristics discussed below appropriately are considered part of the opt-out
process, informing consumers that "a service was scheduled or performed" and are normal
communications "expected or desired" between consumers and the entities to which they provided prior
express consent to receive text messages. We thus conclude that our interpretation, in the specific
circumstances at issue here, is consistent with the goals and objectives of the TCPA.
9.
The available evidence regarding consumer expectations likewise supports the conclusion
that a consumer's prior express consent to receive text messages from an entity can be construed to
include consent to receive a final, one-time text message confirming that such consent has been revoked.
Commenters, including organizations representing consumers, are divided on this issue.36 The record,
however, reflects that the sending of one-time confirmation texts is a widespread practice among various
businesses, governmental entities, and non-profit organizations.37 In light of the widespread use of
confirmation texts, we would expect consumers to complain about receiving confirmation texts if they
had not consented to them as part of providing their original express consent to receive text messages.
Our review of consumer complaints, however, indicates that consumers have not complained about
receiving confirmation texts.38 In fact, our review shows that at least some consumers complain about not
receiving a confirmation text after sending an opt-out request from receiving further text messages.39 We
believe this supports the conclusion that consumers expect that their prior express consent includes


34 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA
International for Clarification and Declaratory Ruling
, Declaratory Ruling, 23 FCC Rcd 559, 564, para. 9 (2008)
(ACA Declaratory Ruling) (quoting House Report 102-317, 1st Sess., 102nd Cong. (1991) at 17). We note that the
legislation discussed in that House report would have codified, as new section 227(b)(4), restrictions on calls: "(A)
to any emergency telephone line or pager of any hospital, medical physician or service office, health care facility, or
fire protection or law enforcement agency; or (B) to any telephone number assigned to paging, specialized mobile
radio, or cellular telephone service." H. Rep. 102-317 at 3. In summarizing these restrictions, the House report
subsequently referred simply to "use [of] an automatic dialing system to make unsolicited calls to any emergency
telephone line or pager of any hospital, medical physician or service office, health care facility, or fire protection or
law enforcement agency," and it is in that context that the statement quoted in the text above arose. However,
notwithstanding the narrower initial summary of the relevant requirements, the House report stated that it was
explaining "[t]he restriction on calls to emergency lines, pagers, and the like," suggesting that its focus went beyond
the restriction on calls to emergency lines and pagers, and also encompassed the restriction on calls to other wireless
numbers. Id. at 15 (emphasis added). Consistent with the Commission's prior reliance on the cited portion of the
House report, we thus believe it appropriately informs our interpretation of the restrictions on calls to wireless
numbers in section 227(b)(1)(A)(iii), as well.
35 H. Rep. 102-317 at 17.
36 See, e.g., Consumer Action Comments at 2; CTIA Comments at 3-9; Verizon Comments at 5-9; American
Bankers Reply Comments at 2-5. But see NACA Comments at 6-7; Gerald Roylance Comments at 6; Joe Shields at
6.
37 See, e.g., MMA Comments at 2; SoundBite Comments at 3; American Bankers Reply Comments at 2.
38 A review of complaints received from July 2011 to July 2012 did not reveal any complaints about the receipt of a
confirmation text message in response to an opt-out request.
39 See, e.g., IC 11-T00735402-1 (consumer states that s/he texted STOP several times and never received a
response); IC 11-T00829672-1 (consumer complains s/he received no response received after sending a STOP
request); IC 12-T00941406-1 (consumer complains that texting entity refuses to acknowledge opt-out request); IC
11-T00808614-1 (consumer complains that s/he received no response to STOP request).
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consent not just to the receipt of texts but also the process for opting-out of those text messages, including
the receipt of a confirmation message. In addition to constituting an element of the opt-out process, opt-
out confirmation texts are critical to the purposes of the underlying, ongoing text messages that the
consumers originally elected to receive. For example, confirmation that a consumer no longer wishes to
receive fraud prevention alerts on bank accounts ensures that the opt-out request did not come from a
third party seeking to stop such texts to conceal fraudulent activities.40 As a result, we believe our
conclusion that a consumer's prior express consent can be reasonably construed to include consent to
receive a confirming text is supported by the best available evidence from consumers themselves.
10.
Although a few commenters contend that the sending of confirmation messages is
unnecessary and will impose unwanted costs upon consumers, we find that any such costs are outweighed
by the benefits that consumers derive from such messages.41 The record demonstrates that, whether or
not texts impose some incremental cost on consumers, such confirmation messages ultimately benefit and
protect consumers by helping to ensure, via such confirmation, that the consumer who ostensibly opted
out in fact no longer wished to receive text messages from entities from whom the consumer previously
expressed an affirmative desire to receive such messages.42 In addition, without confirmation, a consumer
may be uncertain whether his or her request was successfully processed and unnecessarily spend time and
resources trying to find out.43 As noted, text messages can include important information relating to the
consumer's bank accounts, credit cards, and other useful sources of information such as disaster alerts.
For these reasons, we find that the sending of a one-time confirmation text message with the
characteristics discussed below promotes the TCPA's goals of protecting consumer privacy and
promoting public safety.44 In addition, we note than many wireless providers offer unlimited texting
plans and that many consumers subscribe to those plans.45 These consumers will incur no additional
monetary cost from one additional text message confirming their request to opt out from future messages.
For the reasons discussed above, we believe that even in the limited situations where consumers may
incur some costs or inconvenience from the receipt of a confirmation message, the benefits of a tangible


40 Cf. Implementation of the Telecommunications Act of 1996; Telecommunications Carriers' Use of Customer
Proprietary Network Information and Other Customer Information; IP-Enabled Services
, Report and Order and
Further Notice of Proposed Rulemaking, 22 FCC Rcd 6927, 6942, para. 24 (2007) (requiring "carriers to notify
customers immediately of certain account changes" including through voicemail or text messages as "an important
tool for customers to monitor their account's security," helping protect against "data brokers that might otherwise
manage to circumvent the authentication protections we adopt in this Order, and to take appropriate action in the
event of pretexter activity" and to "empower customers to provide carriers with timely information about pretexting
activity").
41 See, e.g., NACA Comments at 6-7; Gerald Roylance Comments at 6; Joe Shields at 6.
42 See, e.g., Consumer Action Comments at 2; CTIA Comments at 9; GroupMe Comments at 3; MMA Comments at
1-2; RILA Comments at 1; Verizon Comments at 7.
43 See, e.g., Consumer Action Comments at 2; GroupMe Comments at 3; MMA Comments at 3.
44 See, e.g., American Bankers Reply Comments at 2-4 (noting that informational text messages can include alerts
that protect against disasters); FPF Comments at 3-4.
45 See, e.g., Letter from Indra Sehdev Chalk, Counsel for T-Mobile, to Marlene H. Dortch, Secretary, FCC, dated
Sept. 7, 2011 in CG Docket 10-207, Attachment at 9 ("Most T-Mobile customers opt for unlimited text messaging
plans."); AT&T Bill Shock Comments at 16 (CG Docket 10-207) filed Jan. 10, 2011 (confirming availability of
unlimited texting plan); Sprint Bill Shock Comments at 8 (CG Docket No. 10-207) filed Jan. 10, 2011 (confirming
unlimited texting plan); Verizon Bill Shock Comments at 7 (CG Docket No. 10-207) filed Jan. 10, 2011 (confirming
unlimited texting plan). Verizon Wireless recently announced as part of its "Share Everything Plan" that it is
dropping virtually all traditional plans and moving toward unlimited voice and text plans. See
http://solutions.vzwshop.com/shareeverything/?cmp=KNC-58100000004897908 (visited July 19, 2012).
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receipt that their opt-out request has been received and processed outweigh any burden from the receipt of
one additional text message.46
11.
Although we interpret section 227 as not barring entities from sending certain
confirmation text messages, we acknowledge that consumer consent to receive these messages is not
unlimited.47 To ensure that confirmation texts are consistent with the TCPA's goal of protecting
consumers from unwanted autodialed communications, we clarify that our holding regarding a
consumer's express consent to receive confirmation texts is limited to texts that: 1) merely confirm the
consumer's opt-out request and do not include any marketing or promotional information; and 2) are the
only additional message sent to the consumer after receipt of the opt-out request. In addition, the record
in this proceeding reflects that such confirmation text messages can be sent within minutes of receipt of
an opt-out request.48 If the confirmation text is sent within five minutes, it will be presumed to fall within
the consumer's prior express consent. If it takes longer, however, the sender will have to make a showing
that such delay was reasonable, and the longer this delay, the more difficult it will be to demonstrate that
such messages fall within the original prior consent.49 Given the factors that persuade us that opt-out
confirmation texts with the characteristics described above fall within the scope of consumers' prior
express consent to receive texts, circumstances that deviate in material ways are unlikely to be
encompassed by that consent.
12.
A consumer's prior express consent, therefore, is limited to a confirmation text message
which confirms receipt of the consumer's opt-out request, and does not contain marketing, solicitations,
or an attempt to convince the consumer to reconsider his or her opt-out decision. We will review
questionable confirmation texts on a case-by-case basis. On the one side, we believe that confirmation
texts that include contact information or instructions as to how a consumer can opt back in fall reasonably
within consumer consent. On the other, texts that clearly contain marketing or promotional materials
(such as "your request to opt-out of future messages will be honored but we are offering you a 10%
discount on our products") and texts that encourage consumers to call or otherwise contact the sender in
an attempt to market, including such texts that, while neutral on their face, lead to a marketing message if
the consumer contacts the sender, are likely beyond the scope of the consumer's prior consent. We will
monitor consumer complaints and take appropriate action if senders are using confirmation texts as an
additional opportunity to market. Moreover, after sending an opt-out request, no text messages other than
one confirmation of the opt-out request is encompassed within the consumer's prior express consent.50


46 Such a receipt can also be useful to the Commission and courts in reviewing alleged TCPA violations to
determine whether an entity that is alleged to have violated section 227 sent additional text messages after
revocation of prior express consent by the consumer has been confirmed. For example, evidence showing that an
opt-out request was sent may not establish when that request was received. The confirmation text will establish a
clearer timeframe of events for this purpose.
47 Although the record does not clarify if there are situations in which consumers are provided a means to expressly
withhold consent to receive opt-out confirmation, we believe that the consumer's consent to receive text messages
would be fully revoked in that situation upon the sending of an opt-out request and the prior express consent would
not extend to a confirmation message.
48 See SoundBite Comments at 8.
49 While neither SoundBite nor commenters propose a specific time by which consumers should receive the
confirmation text, we believe five minutes represents a reasonable outer bound and delay beyond that raises a strong
likelihood that it is not within the scope of consumer consent.
50 We acknowledge and encourage some entities' current practice of explicitly notifying consumers when they
initially consent to be contacted by text message that opting into a text campaign means that they are also consenting
to a final confirmation text when they opt out.
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Entities that send opt-out confirmation text messages will bear the burden to show that their messages are
consistent with these characteristics or otherwise encompassed by prior express consent.51
13.
We emphasize that our finding that a one-time confirmation message after receipt of a
consumer's opt-out request does not violate the TCPA or Commission rules is limited to a confirmation
text, and does not extend to a follow-up confirmation voice call. Unlike requests to stop receiving voice
calls, which can be confirmed during the same call in which a consumer has expressed a desire to opt out,
confirmation of a request to stop text messages necessarily requires a two-part exchange between the
consumer and the sender of such messages. As a result, such confirmation can only be made after the
consumer's opt-out request, in a separate and final text message.
14.
Because we have concluded that a consumer's prior express consent to receive autodialed
text messages from an entity encompasses consent to receive a final one-time text message, which has the
characteristics noted above, we need not address SoundBite's arguments that it is not using an autodialer,
as defined by the TCPA, to send such messages or that such confirmation messages fall within a grace
period to effectuate opt-out requests. Our ruling confirms that even if SoundBite is using an autodialer to
send text messages like those described above, the transmission of such text messages is permissible
under the TCPA because recipients of these texts have given prior express consent within the meaning of
section 227. We thus decline to address SoundBite's additional arguments.
15.
As noted above, the TCPA and the Commission's rules prohibit any person from making
a non-emergency call using an automatic telephone dialing system to any telephone number assigned to a
mobile telephone service without the prior express consent of the called party.52 We emphasize that our
ruling herein is limited to those situations in which a consumer has previously provided such prior
express consent to be sent text messages from the sender and later receives a text confirming a request to
opt-out of future messages that has the above characteristics. Thus, our ruling has no impact on the
TCPA's broad prohibition against sending autodialed text messages in cases where the sender has not
obtained the consumer's prior express consent in the first instance.


51 To the extent that a consumer's prior express consent directly addressed opt-out confirmation texts and expressly
consented to opt-out confirmation texts with characteristics other than those described here, that would be evidence
that the consumer otherwise had given prior express consent for such texts.
52 See 47 U.S.C. 227(b)(1)(A)(iii); 47 C.F.R. 1200(a)(1)(iii).
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IV.

ORDERING CLAUSE

16.
Accordingly, IT IS ORDERED, pursuant to sections 1-4 and 227 of the Communications
Act of 1934, as amended, 47 U.S.C. 151-154, 227, and section 1.2 of the Commission's rules, 47
C.F.R. 1.2, that the Petition for Declaratory Ruling filed by SoundBite Communications, Inc. in CG
Docket No. 02-278 on February 16, 2012, IS GRANTED to the extent set forth herein and IS
OTHERWISE DISMISSED.
17.
IT IS FURTHER ORDERED that this Declaratory Ruling shall be effective upon release.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
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APPENDIX

List of Commenters

The following parties filed comments in response to the March 30, 2012 Public Notice (CG Docket 02-
278):
Commenter
Abbreviation

American Bankers Association and Consumer Bankers

American Bankers

Association

Robert Biggerstaff

Biggerstaff

Consumer Action
Consumer Action
CTIA the Wireless Association
CTIA
Future of Privacy Forum
FPF
GroupMe, Inc.
GroupMe
Mobile Marketing Association
MMA*
National Association of Consumer Advocates
NACA

Neustar

Neustar

William E. Raney
Raney
Retail Industry Leaders Association
RILA
Gerald Roylance
Roylance*
Joe Shields
Shields*
SoundBite Communications, Inc.
SoundBite*
Twilio Inc.
Twilio*
Varolii Corporation
Varolii
Verizon and Verizon Wireless
Verizon
WMC Global
WMC
* filing both comments and reply comment (bold - reply comments only).
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STATEMENT OF

COMMISSIONER AJIT PAI

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of
1991; SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-
278


In regulation, as in sports, it is good to have clear rules.1 As I stated in a speech before the U.S.
Chamber of Commerce back in September, ambiguities about what's prohibited and what's allowed under
FCC rules interpreting the Telephone Consumer Protection Act have forced businesses to guess where
their legal obligations lie.2 The subject of today's order--the Act's application to opt-out confirmation
texts--is case in point. In an effort to better serve consumers, many businesses send a confirmation text
to consumers who opt out of receiving future communications from those businesses. This practice
simply lets consumers know that their requests to opt out have in fact been received and processed.
Notably, our staff review shows that the Commission has not received a single complaint about
this practice. (To the contrary, several consumers complained that they did not receive a confirmation
text.) And yet, companies face class-action lawsuits for this innocuous conduct. These suits have
threatened a host of companies across the country, from Twitter to American Express.3 This state of
affairs serves the interests of trial lawyers rather than consumers and the businesses trying to meet their
needs.
No longer. Today's common-sense order ends the legal lacuna and the courtroom arbitrage it has
inspired. Hopefully, by making clear that the Act does not prohibit confirmation texts, we will end the
litigation that has punished some companies for doing the right thing, as well as the threat of litigation
that has deterred others from adopting a sound marketing practice. And consumers want confirmation
texts: They want the assurance that there will be no further intrusions on their privacy. In short, today's
order is a win for consumers and for innovative companies alike. I am pleased to support it.


1 Cf. Walter Sobchak, The Big Lebowski (Polygram Filmed Entertainment 1998) ("Smokey, this is not `Nam. This
is bowling. There are rules.").
2 See Opening Remarks of Commissioner Ajit Pai at the Telecommunications & E-Commerce Committee
Roundtable of the U.S. Chamber of Commerce at 3 (Sept. 14, 2012), available at http://go.usa.gov/gT6e.
3 See Moss v. Twitter, Inc., No. 11-CV-906 (S.D. Cal.) (dismissed without prejudice); Maleksaeedi v. American
Express Centurion Bank
, Case No. 11-CV-790 (S.D. Cal.).

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