The FCC has issued a notice announcing that it is seeking comment on a petition filed by Capital One Services, LLC (Capital One) that asks the FCC to issue a declaratory ruling to confirm that the recipient of an opt-out request sent in response to a text message does not violate the Telephone Consumer Protection Act (TCPA) by sending a confirmation text message to clarify the scope of the request.  Comments are due by December 9, 2019 and reply comments are due by December 24, 2019. 

Capital One’s petition describes an “intelligent assistant” tool it has developed that enables customers to receive different categories of informational text messages such as fraud alerts, payment reminders, and low balance or available credit notices.  Customers can also use the tool to send text messages seeking information from Capital One, such as available balance or other details about the customer’s account.  To enroll to receive or send text messages using the tool, a customer must affirmatively provide his or her mobile phone number and consent to receive information through the tool via text message.  Because the tool transmits multiple categories of informational text messages, if a customer revokes his or consent in response to a particular text message (such as by replying “STOP,”), it may not be clear whether the customer wants to opt-out of all text messages sent using the tool or only the category of text message to which the consumer replied “STOP.”

In its 2012 declaratory ruling in Soundbite Communications, the FCC clarified that a sender of text messages can confirm a recipient’s revocation request without violating the TCPA by sending a one-time opt-out confirmation text message within a short period of receiving the request.  The FCC concluded that a consumer’s prior express consent to receive text messages included receiving a one-time opt-out confirmation text message.

Soundbite, however, involved a text message program in which the sender only sent messages concerning one category of information.  As a result, the scope of a consumer’s opt-out request would always be clear to the sender.  In its petition, Capital One asks the FCC to confirm that a text message clarifying the scope of an opt-out request in a program where the consumer has consented to receive multiple categories of informational text messages is also permissible under Soundbite and does not violate the TCPA.