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FCC clears confirmation texts for SMS opt-outs

The Federal Communications Commission yesterday gave SMS text marketers the legal right to be polite. The agency handed down a favorable ruling on a petition filed in February by SoundBite Communications, officially making sending opt-out confirmation texts a best practice under the Telephone Consumer Protection Act (TCPA).

Since SMS texting became a standard marketing practice over the past decade, several class-action suits have been filed against marketers for returning a confirmatory text to consumers after they had opted out. It was a “gotcha” move on the part of trial lawyers, who argued that their clients got sent texts after they’d denied them, violating the TCPA. In March of this year Barclays group settled such a suit for more than $8 million. Similar suits have been filed against a list of companies including Taco Bell, American Express, Nascar, Citibank, Red Box, and NFL Enterprises.

SoundBite clients Bank of America and GameStop became plaintiffs during the past two years and the company decided to make a stand. “When the TCPA was passed, there was no SMS. The opt-out guidelines referred to faxes and phone calls,” says SoundBite president and CEO Jim Milton. “Meanwhile, every industry organization, the Chamber of Commerce, and the Better Business Bureau had listed opt-out confirmation messages among their best practices. Consumers want to receive them.”

The ruling handed down yesterday by FCC Commissioner Ajit Pai agreed with SoundBite that confirmatory messages fall within the intent of TCPA, but added the condition that consumers give prior express consent to receive them when they opt in. Also, the FCC required that confirmatory messages may not contain any promotional copy or text that attempts to dissuade consumers from opting out.

“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,” said Commissioner Pai in a statement accompanying the ruling. “This state of affairs serves the interests of trial lawyers rather than consumers and the businesses trying to meet their needs.”

Milton is celebrating the outcome on behalf of consumers and businesses alike. “We had just had enough and decided something had to be done to end this,” he says. “Consumers truly don’t feel the process is completed without these texts, and that can end up hurting brands in the long run. If consumers don’t get the message, they may develop trust issues with the brand.”

Marketers, the government has spoken. Politeness no longer needs to be accompanied by a cash consideration.

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