The Federal Communications Commission (“FCC”) is proposing to harmonize its prerecorded message rule with the Federal Trade Commission’s (“FTC”) rule.1 The FCC and FTC are both authorized by Congress to regulate prerecorded messages. Currently, several material differences exist between the FCC and FTC rules, which the FCC is seeking to reconcile. The amendments would apply the FTC’s more stringent standards to those entities under the sole jurisdiction of the FCC, such as common carriers (including telephone companies and airlines), banks, and insurance companies.

In 2008, the FTC amended the Telemarketing Sales Rule (“TSR”) to eliminate its “established business relationship” exemption and require prior express, written authorization to deliver prerecorded messages. The FCC is seeking comment on whether it should conform its rules to the FTC’s TSR by taking the following steps:

  1. Requiring sellers and telemarketers to obtain telephone subscribers’ express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls even when an established business relationship exists between the caller and the consumer;  
  2. Exempting certain federally-regulated healthcare-related calls from the general prohibition on prerecorded telemarketing calls to residential telephone lines;  
  3. Requiring that prerecorded telemarketing calls include an automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded messages from a seller or telemarketer; and  
  4. Adopting a “per campaign” standard for measuring the maximum percentage of live telemarketing sales calls that a telemarketer lawfully may drop or “abandon” as a result of the use of automated dialing software or other automated dialing equipment.2  

In addition, the Commission is seeking comment on whether it should extend the “prior express, written authorization” requirement to autodialed or prerecorded or artificial calls to cellular services.