Compliance Update!: Important Changes Coming to Required Consents for Telemarketing

On October 16, 2013, the FCC’s changes to regulations under the Telephone Consumer Protection Act (“TCPA”) take effect.  The changes are important because the TCPA provides for unlimited strict liability of $500 - $1,500 per call or text message made without obtaining proper advance consent.  It is the consent requirements that are changing.  Numerous class actions have been filed based on phone calls that violate the TCPA.

Effective October 16, you must obtain a consumer’s prior written consent to make certain types of calls to both cell phones and land lines.  The prior consent must list the phone numbers to which the consent applies and a generic consent to call any phone number associated with the consumer is not valid.  Prior written consent for the phone number will now be required for any autodialed calls which include any call in which any technology besides the dialing fingers of the caller are involved.   An example is an autodialer but less sophisticated devices using technological assistance (a phone that brings up the number to be called from an Excel spreadsheet for example) may also be considered an automated telephone dialing system . It does not matter whether or not a live person is on the call.  A recent 9th Circuit case held that if the equipment used has the capacity to store or produce phone numbers (whether or not you are using it to do so), it is considered an automatic telephone dialing system that requires a prior written consent.  A call also is considered made if a voice message is left or no one answers the call.  The focus is on the intent and action of the caller.

Prior written consent is also required for any prerecorded sales message calls to either cell phones or land lines using an artificial or a prerecorded voice message as well as any systematically-launched text messages.  Text messages are considered to be calls under the TCPA.  Where prerecorded sales messages are permitted because the caller has valid written consent, the message must nevertheless provide a do-not-call/opt-out mechanism incorporated into the message.

The nature of the consent required also depends on the purpose of the call.  For non-marketing transaction calls (be careful here because anything stated in the call that can be construed to be marketing can make the call a marketing call), prior express consent needs to be obtained.  A prior business relationship no longer suffices except for calls to landlines that are not on the federal Do-Not-Call list.  A prior business relationship means the consumer called you about a product or service within the prior 3 months or has done business with you within the preceding 18 months.

A prior written consent is required for calls and text messages to wireless lines.  If you have an express consent today but it is not in writing, try to get a written consent for the phone number before October 16.  You cannot get a prior express written consent in a telephone call.  The federal ESIGN Act does not permit an oral record to be an electronic communication equal to a writing.

The new TCPA rules also deal with abandoned calls which are calls in which the called party answers but there  is no one from the caller to take the call, typically due to volume.  When a caller places a sales call that is deemed “abandoned,” the caller must deliver a short recorded message identifying the caller within two seconds. Under the new rule, this message must also include the do-not-call/opt-out mechanism required for all prerecorded sales messages.  The new rules also contain new ways to calculate the maximum allowable number of abandoned calls within a 30-day period.

The TCPA does not address whether a consent can be revoked but a majority of courts have indicated that a consumer is entitled to revoke their consent to be called or text messaged.  In managing your opt out lists, it is advisable to give consumers who want to revoke their consent the right to do so.

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Randy Henrick is Associate General Counsel and lead Compliance Counsel for Dealertrack, Inc.  This article is intended for information purposes only and does not constitute the giving of legal or compliance advice to any person or entity. Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on your particular situations from a knowledgeable attorney or compliance professional licensed to practice in your state.