The Federal Communications Commission’s (“FCC”) previously issued rules on the consent requirement under the Telephone Consumer Protection Act (“TCPA”) went into effect on October 16, 2013. The prior rule prohibited using prerecorded voice calls, or an autodialer to call or text a wireless phone for telemarketing purposes unless the caller had obtained the “prior express consent” of the called party. There was no exception for an “established business relationship” between the parties1. After October 16, the FCC now requires a higher standard of consent—prior express written consent2. The FCC has stated that the new rules are intended to achieve maximum consistency with the Federal Trade Commission’s (“FTC”) analogous Telemarketing Sales Rule (“TSR”).
In order to be considered sufficient, the prior express written consent must:
- be in writing;
- bear the signature of the person called;
- list the phone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered; and
- contain a clear and conspicuous disclosure informing the signatory that:
- by executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial voice; and
- the person is not required to sign the agreement (directly or indirectly), or to enter into such an agreement as a condition of purchasing any property, goods, or services.
The notice must also be separate and distinguishable from advertising copy or other disclosures. Written consent may be obtained through methods that comply with the E-SIGN Act, such as email, websites, text message, telephone keypress, or voice recording. Previous non-written consent obtained previously to October 16 does not carry over.