On October 16, new Federal Communications Commission (FCC) regulations take effect that will require telemarketers to have "prior express written consent" before using autodialer equipment or prerecorded messages to call customers or prospects. Companies planning to conduct telemarketing campaigns after October 16 have little time remaining in which to come into compliance.
The FCC has regulated telemarketing since the enactment of the Telephone Consumer Protection Act (TCPA) in 1991. In February 2012, the FCC announced new rules intended to address consumer complaints regarding prerecorded sales calls, typically placed using predictive dialers. Most importantly, beginning October 16, FCC regulations will require telemarketers making autodialed or prerecorded calls to consumer wireline or wireless numbers to obtain prior express written consent to do so (an oral consent will no longer suffice). At the same time, the FCC repealed the “established business relationship” exception that for 20 years had enabled telemarketers to make autodialed/prerecorded calls to past customers for limited periods of time.
Prior Express Written Consent
As to what constitutes “prior express written consent,” the FCC’s new regulations require:
- An agreement, in writing, bearing the signature of the person called (any form of signature authorized under the federal Electronic Signatures in Global and National Commerce (E-SIGN) Act is permitted);
The written agreement “shall include a clear and conspicuous disclosure” that informs the person who signs it that:
- The person is thereby allowing the seller to deliver (or cause to be delivered) telemarketing messages using an automatic telephone dialing system or an artificial/prerecorded voice;
- Those calls will be made to the telephone number that the person signing authorizes; and
- The person is not required to sign the agreement or to agree to enter into the agreement as a condition of purchasing any property, goods, or services.
The telemarketer will also need to maintain records sufficient to prove that the required written consent was procured.
The revised FCC rule also requires prior express written consent to telemarketing calls made using predictive dialers, due to a previous FCC decision interpreting the statutory term “automated dialing system” broadly. The FCC determined that an automated dialing system need only have the capacity to generate random or sequential dialing, regardless of whether that capacity is in fact used.
In contrast, non-telemarketing calls—such as informational calls that do not include a sales pitch—to wireless numbers require merely “prior express consent,” which may be oral or in writing.
The FCC’s revised regulations also more closely mimic the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR), which restricts unfair and deceptive telemarketing trade practices. Since September 2009, the F T C’s TSR has required commercial businesses subject to its jurisdiction to have prior express written consent before placing prerecorded telemarketing calls to consumers. By revising its rules, the FCC has established a more uniform set of requirements for telemarketers using predictive dialers and prerecorded messages.