Mistake of the Week: Do Not Call and Consent Revocations

As the flavor of telemarketing class actions has been changing over the past year or so, more and more claims are going back to the basics – that the contractor failed to place the consumer on the internal do not call list, failed to make the necessary disclosures in the opening script, contacted the consumer outside of the allowable calling days/times or failed to cross-reference a “stop-calling” request.

Your call-center operators should have a DNC rebuttal script that they pick up and read as soon as they get either (i) a consumer’s request to be placed on the internal DNC, or (ii) a consumer’s complaint that we have called the person even though they are on the DNC.  If you need help with any of this, give us a call, but keep in mind that your internal DNC list is supposed to be maintained for five years.

The FCC, following numerous conflicts in court rulings, made clear that a consumer can revoke any consent as to communications as long as the consumer uses a reasonable manner and clearly expresses a desire not to receive further calls or texts.  

In other words, any reasonable effort by a consumer to revoke consent to receive communications has to be followed by the contractor.  Keep in mind, while you can create method-specific revocation options (“text us to opt-out,” etc.), you can’t actually limit the revocation to a particular method – a consumer can call you to revoke texting authorization, and they can text to revoke calling authorization.

There are still many operational nuances that have yet to be addressed by the FCC and the courts on how exactly this is going to be interpreted, but our position is that you should err on the side of caution, because the telemarketing class-action attorneys are already jumping on this.

Any indication from the consumer that could reasonably suggest an effort to revoke consent should be taken as an actual revocation. Words such as “stop,” “end,” “cancel,” “opt-out,” “revoke,” “unsubscribe” – anything along those lines should be considered valid as revocation. And remember that you now have 10 business days after receipt of the request to implement that revocation and get that consumer on your internal do-not-call list (this is an important change, because we used to have 30 calendar days to implement an internal DNC request)

We’ve also been getting a lot of questions by clients as to whether they can respond to a consumer’s revocation request and get clarification. Did the consumer mean they wanted to revoke texting consent? Did they mean to cancel all communications, including informational ones? Or did they only mean to cancel telephone calls? 

If you are going to respond to an opt-out request to try and get further clarification, make sure you do so in a manner so that the follow-up contact can’t be argued to be a marketing communication.  For example, consider something such as the following: 

This is a one-time generated SMS text message not linked to any marketing purpose. We are confirming that you have opted out from receipt of future [text communications] [all communications]. If this was incorrect you can respond via this text and let us know or you can call us at________________. Thank you.

There have also been a number of so-called “telemarketing experts” that have pointed out that the FCC has granted a couple of limited waivers delaying the effective date of this revocation rule until, now, January 31, 2027.  The problem is that the rule itself wasn’t actually delayed – what was delayed was the requirement that a revocation request in response to one type of message be treated as a revocation for all communications.  The FCC had initially made clear that any request to stop communications (informational or marketing) should be treated as a request to stop all communications, for all purposes. That is what has been delayed until April 2026.  So for those companies that are engaged in multiple marketing methodologies, or may have telemarketing or texting consent with a particular consumer in regard to multiple transactions, or across numerous affiliates, those companies will be allowed to treat a revocation request only as it might apply for a particular message or message methodology, such as only as to marketing calls, only as to texting, etc. At least, until next year.