Court Cases Illustrate Importance of Honoring Consent Revocations ASAP

***This blog was updated on October 21, 2024 to reflect that the FCC rule reducing the number of days to honor consent revocations from 30 to 10 will go into effect on April 11, 2025.***

The Telephone Consumer Protection Act (TCPA) requires telemarketers to maintain an internal, company-specific do-not-call (DNC) list, which includes consumers’ requests to opt out of both calls and texts. The Federal Communications Commission (FCC) currently requires that businesses honor such requests “within a reasonable time” not to exceed 30 days. Given this non-specific timeframe, courts across the country have understandably varied in their interpretation of what constitutes a “reasonable” timeframe. Older case law suggests that courts historically tended to allow more leeway in this area. However, while there’s at least one recent instance from last year where a court in the Southern District of New York held that it was not unreasonable for Macy’s to take three days (including part of the weekend and one business day) to operationalize a do-not-text (DNT) request, a couple of very recent cases suggest consent revocations should be honored as soon as possible.

In the September 2023 case of Lourie v. Papa John’s International, Inc., a plaintiff filed a TCPA suit in the U.S. District Court for the Northern District of Georgia arising out of three telemarketing text messages he received from Papa John’s the previous July. The Plaintiff alleged he replied “STOP” after the first text on July 17,^, 2023, but received two additional texts on July 21 and July 24, four and seven days later, respectively. In November, counsel for Papa John’s filed a Motion to Dismiss, arguing that the “DNC request” was honored within a reasonable timeframe. In a holding this past June, the court disagreed that the timeframe was reasonable as a matter of law and allowed the case to continue past the pleading stage. The parties ended up settling last week. To recap, this is a case where a company ended up settling a complaint for texts it sent four and seven days after a plaintiff opted out.

In the July 2024 case of Fouda v. Bikers Against Drunk Drivers (BADD), the Plaintiff filed a class action suit in the U.S. District Court for the Southern District of California alleging the Defendant violated the TCPA by failing to honor her request to opt out of communications. After she replied “STOP” to a text message on March 25, 2024, the Plaintiff alleged she received sixteen additional text messages through April 22, 2024, meaning all texts subject to the case were sent within 30 days. The court record does not currently indicate why, but earlier this month the Plaintiff filed a Notice of Voluntary Dismissal With Prejudice (without the Defendant ever filing an Answer), meaning the case is permanently dismissed and cannot be refiled. This could be for any number of reasons, including the possibility of an off-the-record settlement, but this is pure speculation.

Important Consent Revocation Takeaways and Reminders

• It was noted above that the requirement to honor consent revocations within a reasonable time not to exceed 30 days is the “current” rule. That is because of a new FCC rule to change “within a reasonable time” to “as soon as practicable” and to reduce the 30-day timeframe to a 10-day timeframe will go into effect on April 11, 2025. The FCC emphasized in its commentary that “the availability of automated means to process revocation requests means that ‘practicable’ should be swift, especially as technology improves to make automation more simple and economical.” Bottom line, businesses should try to ensure DNC/DNT requests are operationalized as soon as possible, if not immediately, and never assume they have the full 10-day period.
• Technically, the rules apply to robocalls and robotexts, defined as those sent using an “automatic telephone dialing system” or an artificial or prerecorded voice, but CompliancePoint recommends complying with these rules regardless of the type of system used, since definitions can quickly change as we have often seen. Moreover, a critical element of compliance is managing consumer expectations and avoiding complaints. Consumers do not expect to get additional calls and texts after opting out.
• Businesses should ensure these compliance elements are spelled out in their DNC/DNT Policy and that they train personnel on how to respond to opt-out requests via scripting and how to operationalize them as soon as possible.
• Businesses must ensure opt-outs are transmitted to any third-party companies telemarketing on their behalf. Likewise, businesses must ensure that any potential vendors will relay consent revocations back to them as quickly as possible.
• One centralized DNC/DNT list should be maintained to avoid any potential gaps. Also, federal rules mandate that DNC/DNT requests apply to the household and not to a specific individual or individuals. Therefore, if your business has one phone number for multiple people in a household on different accounts, they should all be dispositioned as DNC/DNT if such a request occurs.

CompliancePoint has the team and services to bring your marketing campaigns into compliance with all applicable regulations, including the TCPA, TSR, Do Not Call lists, CAN-SPAM, and all state telemarketing laws. Contact us at connect@compliancepoint.com to learn more about how we can help.