Businesses that use automated technologies to place telemarketing calls and messages have just over a month to assess and revise their current calling practices to avoid the risk of expensive, time-consuming lawsuits under new Telephone Consumer Protection Act (TCPA) rules enacted by the Federal Communications Commission (FCC).

The TCPA (47 U.S.C. § 227) and the FCC’s TCPA rules (47 C.F.R. § 64.1200 et seq.) require parties to obtain “prior express consent” from the called party before making non-emergency calls to wireless telephone numbers using an “automatic telephone dialing system” (or “autodialer”) or an artificial or prerecorded voice.  They also require parties to obtain “prior express consent” before using an artificial or prerecorded voice to call residential (landline) telephone numbers.  This “prior express consent” may be obtained orally or in writing, including through electronic means, and certain exemptions apply to the residential restriction (including one for calls to individuals with whom the caller has an established business relationship).

Under the new FCC rules that become effective on October 16, 2013, parties must obtain “prior express written consent” for these calls.  In addition, the established business relationship exemption will be eliminated – parties making prerecorded telemarketing calls to residential telephone numbers must now obtain prior express written consent from the called party regardless of any established business relationship.

To satisfy the new written consent standard, the caller must obtain an agreement in writing that is signed by the called party and includes a “clear and conspicuous” disclosure that the signatory agrees to receive autodialed and prerecorded telemarketing calls and messages at a specific telephone number from a particular seller.  In addition, parties may not condition the purchase of any goods or services on an individual providing the written consent.  (Prerecorded telemarketing calls from certain callers to residential telephone numbers are already subject to these restrictions under existing Federal Trade Commission rules.)  Electronic forms of consent that comply with the E-SIGN Act are generally sufficient to establish the requisite “written” consent.

Although the new rules continue to permit callers to rely on oral “prior express consent” for automated non-telemarketing, informational calls and messages, callers are advised to proceed with caution.  For example, “dual-purpose” calls and messages that include both telemarketing and non-telemarketing components could be considered “telemarketing.”

With regulators, courts, and plaintiffs’ class action attorneys all targeting TCPA violations, businesses should review their practices in advance of October 16, 2013, and stay apprised of the latest legal developments – especially when using text messages, prerecorded messages, and other automated dialing technologies to interact with U.S. consumers.

Deborah Broderson