IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GARY HANLEY on behalf of himself and

others similarly situated,

Plaintiff,

v.

GREEN TREE SERVICING, LLC,

Defendant.

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1:12-cv-4158

Judge Castillo

Magistrate Judge Rowland

JURY DEMANDED

PLAINTIFF'S MOTION FOR LEAVE TO SUBMIT ADDITIONAL AUHTORITY

IN OPPOSITION TO GREEN TREE’S MOTION TO DISMISS

Plaintiff respectfully requests that this Court permit him leave to submit the attached

FCC declaratory ruling in further support of his opposition to Green Tree’s motion to dismiss.

In support of this motion, plaintiff states:

1. This is a Telephone Consumer Protection Act, 47 U.S.C. §227(b)(1)(A)(iii) case

arising out of Green Tree’s use of an “automatic telephone dialing system” and artificial or

prerecorded voice to call plaintiff’s cellular telephone.

2. Green Tree has filed a Rule 12 motion, arguing that dismissal is appropriate

because plaintiff provided his cellular telephone number to it, thereby (according to Green

Tree) consenting to receive autodialed/prerecorded calls in perpetuity.1 Plaintiff’s argument in

response is that he revoked consent to receive autodialed calls, and that calls after such

revocation were impermissible. Green Tree contends that revocation is not possible under the

TCPA, or at least that revocation must be in writing in order to be effective.

1 Green Tree’s motion also improperly asks for dismissal of the entire case based upon an affirmative defense that

it has not yet raised in the pleading, and documents extraneous to the complaint.

Case: 1:12-cv-04158 Document #: 40 Filed: 12/05/12 Page 1 of 14 PageID #:166
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3. A few days ago, on November 29, 2012, the Federal Communications

Commission issued In re Rules and Regulations Implementing the Telephone Consumer

Protection Act of 1991, Declaratory Ruling as to Petition of SoundBite Communications, Inc., CG

Docket No. 20-278 (Nov. 29, 2012) (“SoundBite Ruling”), attached hereto.

4. The threshold issue before the FCC was whether consumers who consent to

receive text messages sent with an “automatic telephone dialing system” may effectively

revoke that consent. The FCC unequivocally held that consumers may do so.

5. The next issue before the FCC was whether companies may send a confirmatory

text message to consumers who ask not to receive any more calls. The FCC held that such

messages are permissible pursuant to the consumer’s original prior express consent, as long as

only one confirmatory text is sent within five minutes of receipt of revocation, and the message

does not contain an advertisement. SoundBite Ruling at ¶11.

6. The FCC’s SoundBite Ruling also directly addresses, with approval, whether oral

revocation of consent to receive robodialed telephone calls is effective:

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.

Id. at ¶ 13.

7. Plaintiff respectfully submits that the Soundbite ruling is directly applicable to

this case because it interprets the precise statutory paragraphs regarding “prior express

consent” that are at issue here. 47 U.S.C. §227(b)(1)(A)(iii); CE Design, Ltd. v. Prism Business

Case: 1:12-cv-04158 Document #: 40 Filed: 12/05/12 Page 2 of 14 PageID #:167
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Media, Inc., 606 F.3d 443, 446-47 (7th Cir. 2010). Even if only persuasive, SoundBite provides

powerful authority in support of plaintiff’s position that consent may be revoked.

WHEREFORE, plaintiff respectfully requests that this Court permit him leave to submit

the attached FCC declaratory ruling in further support of his opposition to Green Tree’s motion

to dismiss.

Respectfully submitted,

/s/Alexander H. Burke

Alexander H. Burke

BURKE LAW OFFICES, LLC

155 N. Michigan Ave., Suite 9020

Chicago, IL 60601

(312) 729-5288

(312) 729-5289 (fax)

ABurke@BurkeLawLLC.com

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Federal Communications Commission FCC 12-143 

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

Rules and Regulations Implementing the 

Telephone Consumer Protection Act of 1991

SoundBite Communications, Inc.

Petition for Expedited Declaratory Ruling

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CG Docket No. 02-278

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.4In 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.8SoundBite 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 optout 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, optout 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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