In order to comply with Section 64.1200(f)(8) of the FCC Rules under the Telephone Consumer Protection Act, any company wanting to make robocalls to consumers must obtain “prior express written consent.” Additionally, the consumer must not be required to agree to accept these calls “as a condition of purchasing any property, goods, or services.”
But the FCC says First National (F.N.B. Corporation) and Lyft violated these rules by telling people that if they wanted to be customers of these businesses, they had to accept robocalls or spam texts.
According to the citation issued for F.N.B. [PDF], when First National customers first go online to use the bank’s website they are told they have to agree to the company’s “Online Banking Services Agreement,” which declares — without providing any way to opt out — that users consent to receiving texts and other marketing messages on the phone number provided at registration.
The bank makes a similar demand — again, without a method for opting out — for First National customers who want to use Apple Pay with their bank-issued cards.
The FCC considers these to be “blanket agreements” that require “all consumers to affirm in order to obtain service” and “do not allow any opportunity for consumers to provide input on the terms.”
While the First National citation appears pretty cut-and-dry, the Lyft citation [PDF] is a little more complicated.
The ridesharing service’s Terms of Service automatically opt-in a customer to robocalls and texts. The company claims in the terms that it offers an “unsubscribe” option for people looking to avoid these marketing messages but notes in the terms that opting out “may impact your use of the Lyft Platform or the Services.”
Furthermore, the FCC contends that “contrary to the explicit representations in the Lyft Terms of Service… Lyft does not, in fact, provide ‘unsubscribe options’ for consumers to follow.”
Investigators say the only way to get out of these unwanted messages is to search for opt-out instructions on the Lyft website’s “help center.” And the only thing the FCC could find were directions for stopping texts from Lyft (you reply with “STOP”); no details could be found on the Lyft site for avoiding robocalls.
The icing on the spam cake for the FCC was the discovery that stopping marketing texts from Lyft meant stopping all texts from Lyft, including security confirmation texts needed to log in to one’s Lyft account.
“In other words, exercising the option to decline marketing messages made it impossible to use Lyft’s services,” reads the citation, which deems Lyft’s opt-out representation as “illusory in nature,” and concludes that Lyft “effectively requires all consumers to agree to receive marketing text messages and calls on their mobile phones in order to use services.”
The FCC has given both companies 30 days to reply to the citations and called on them to cease the allegedly unlawful practices. Failure to comply could result in fines of up to $16,000 for each future violation or for each day of a continued violation.
“Consumers have the right to choose whether they want marketing calls and texts to their cell phones,” said Travis LeBlanc, Chief of the FCC Enforcement Bureau, in a statement. “Today, we again make clear that such calls and texts are unlawful without express written consumer consent. We urge any company that unlawfully conditions its service on consent to unwanted marketing calls and texts to act swiftly to change its policies.”