On January 20, the FCC proposed to amend its rules regarding prerecorded telemarketing messages to conform to stricter FTC rules that took effect last September. In practice, this change would extend the FTC's regulatory approach to for-profit entities outside of the FTC's jurisdiction, such as telecommunications carriers, banks, most insurance companies and purely intrastate calls. Comments will be due 60 days following publication of the proposal in the Federal Register.

In particular, the FCC is proposing to amend its rules under the Telephone Consumer Protection Act (TCPA) by:

  • Requiring sellers and telemarketers to obtain telephone subscribers' express written (including electronic) consent to receive prerecorded telemarketing calls, even when there exists an established business relationship;
  • Requiring prerecorded telemarketing calls to include an automated, interactive mechanism by which a consumer may "opt out" of receiving future prerecorded messages from a seller or telemarketer; and
  • Exempting certain federally regulated health care-related calls from the general prohibition on prerecorded telemarketing calls to residential telephone lines.

Currently, the FCC, unlike the FTC, does not require telemarketing entities to obtain prior written consent from subscribers with whom they have an established business relationship. The FCC believes that its proposed revisions would simplify compliance and benefit consumers by increasing the uniformity between the FCC and FTC regulations and by extending the FTC's standards to regulated entities that are not currently subject to FTC rules.

The Commission's proposal would not affect prerecorded message calls that currently are exempt from its TCPA rules. Calls exempt under the FCC's rules include those by or on behalf of tax-exempt nonprofit organizations (here, the FCC rules would continue to differ from the FTC rules, which apply to for-profit telemarketers calling on behalf of nonprofit entities); political calls; noncommercial calls; and commercial calls that do not contain unsolicited advertisements, for example, calls that deliver purely "informational" content (e.g., messages notifying recipients of a flight cancellation).

Adoption of the final rule is expected by late summer.