On October 16, 2013, the last piece of the Federal Communications Commission’s more stringent telemarketing rules adopted in January 2012 will go into effect.
With less than six months left before the FCC’s new rule takes effect, we feel it is important to highlight key provisions of the FCC’s new rule, which may impact your company’s practices by requiring that certain telemarketing calls made to wireless telephone numbers and residential landlines be made with the “prior express written consent” of the called party. (Please see our earlier alert discussing other rules adopted by the FCC and already in effect.)
The FCC’s new rule signals a change from current FCC regulations, which do not spell out a written consent requirement.
Background: the Telephone Consumer Protection Act seeks to regulate telemarketing calls
In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) in response to a growing number of consumer complaints regarding telemarketing calls. Rules and regulations implementing the TCPA define “telemarketing” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(12).
Where circumstances indicate that consent has not been obtained, the TCPA may prohibit calls to cellular telephones using equipment that qualifies as an “automatic telephone dialing system” (as that term is defined by the TCPA) and calls made to residential landlines using “prerecorded voices.”
Prior express consent
In February 2012, the FCC released a Report and Order announcing its new prior express written consent rule in an effort to harmonize the TCPA with the Federal Trade Commission’s analogous Telemarketing Sales Rule. (See Report and Order CG Docket No. 02-278, available here). Beginning on October 16, 2013, the FCC will require that persons have prior express written consent from the called party in order to make telemarketing calls to wireless numbers using an “automatic telephone dialing system” or a “prerecorded voice,” or made to residential lines with a “prerecorded voice.”
The new rule puts the onus on the caller – the FCC noted that when a consumer disputes having provided written consent to receive a telemarketing call, the caller has the burden of demonstrating that the consumer actually provided the requisite consent.
Notably, this new prior express written consent requirement does not apply to non-telemarketing calls, such as calls made by tax-exempt nonprofits and calls for noncommercial purposes (for example, calls announcing school closings). The FCC added, however, that certain non-telemarketing calls still require some form of consent.
Complying with the FCC’s new written consent requirement
To satisfy the FCC’s new prior express written consent requirement, “a consumer’s written consent to receive telemarketing robocalls 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.” The FCC added that consent, may also be provided electronically. For example, consent obtained in compliance with the E-SIGN Act satisfies the requirements of the new rule – this includes consent obtained through email, website forms, telephone keypress, voice recordings, and text messages.
As courts and the FCC continue to define the TCPA’s boundaries, determining whether callers are required to comply, or have complied, with with the TCPA’s new rule may be driven by the facts and context of the calls. It is important therefore to review current protocols and procedures to ensure compliance with the FCC’s directives.