As we have reported in the past, the FCC, in a February 2012 Order, revised its TCPA rules to, among other things, “require prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines.” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1831 (2012). This post is meant as a reminder that this requirement is effective October 16, 2013.

With respect to what form of written consent will be acceptable, the FCC, in its 2012 Order, concluded – consistent with the FTC’s Telemarketing Sales Rule – that “consent obtained in compliance with the E-SIGN Act will satisfy the requirements of [the FCC’s] revised rule, including permission obtained via an email, website form, text message, telephone keypress, or voice recording.” Id. at 1844.

Congress enacted the E-SIGN Act (or to facilitate the use of electronic records and signatures in interstate and foreign commerce. The E SIGN Act grants legal effect, validity, and enforceability to “electronic records” and “electronic signatures.” . An “electronic signature” is defined by the E-SIGN Act as “an electronic sound, symbol, or process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” 15 U.S.C. § 7006. The E-SIGN Act further defines an “electronic record” as “a contract or other record created, generated, sent, communicated, received, or stored by electronic means.” Id. Any form of consent that complies with either of these definitions will satisfy the TCPA’s new written consent requirement.

In its 2012 order, the FCC also defined the scope of disclosure that must be made in order to satisfy the new prior express written consent requirement under the TCPA. According to the FCC, consent “must be signed and be sufficient to show that the consumer: (1) received ‘clear and conspicuous disclosure’ of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates. In addition, the written agreement must be obtained ‘without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.’” In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 1830, 1844 (2012).

As mentioned above, this new requirement will be effective for all telemarketing calls as of October 16, 2013, and everyone should be ready NOW with their implementation plans.