New FCC Regulations to Take Effect Regarding Telemarketing Robocalls: All Businesses Marketing By Telephone or Text Must Prepare

There are two major revisions set to take effect that will most significantly affect compliance measures:

1. Prior express written consent from the consumer is required for all autodialed and prerecorded telemarketing calls to wireless and residential lines; and
2. Having an “established business relationship” with the consumer is no longer an exemption from the obligation to obtain prior consent.

Prior Express Consent Must Be Written

The FCC rules currently require that a caller have a consumer’s “prior express consent” before making autodialed and prerecorded telemarketing calls to residential phone numbers and telemarketing or any other autodialed and prerecorded calls to wireless numbers. The new rules effective this month require that this consent be in written form. Non-telemarketing, informational calls remain subject to the existing standard, which does not require that the prior consent be in writing.²

The test of whether an autodialed or prerecorded telemarketing call is intended for telemarketing, and is therefore subject to the written consent requirement, is whether the call offers property, goods or services for sale. The test is applied on a case-by-case basis and the answer depends, not on the caller’s characterization of the call, but on the objective purpose of the message conveyed.

To satisfy the written consent requirement, the business whose products, goods or services are offered must have a written agreement signed by the consumer that meets three criteria. First, the agreement must show that the consumer received “clear and conspicuous disclosure” of the consequences of his or her consent. In other words, the consumer must know that he or she will receive future autodialed and prerecorded telemarketing calls from the particular seller requesting consent. Second, the agreement must show that the consumer unambiguously agrees to receive autodialed and prerecorded telemarketing calls from the seller at a designated number. Third, the caller may not obtain the written consent by requiring it, either directly or indirectly, as a condition of purchasing any good or service.

Written consent may be in an electronic form for purposes of the TCPA. Specifically, consent obtained in compliance with the E-SIGN Act is sufficient written consent. Therefore, prior express consent obtained through email, website form, text message, telephone keypress, or voice recording all satisfy the requirement of prior express written consent.

Established Business Relationship Exemption Removed

Prior to the new rules, the FCC did not require any form of consent for autodialed and prerecorded telemarketing calls to residential lines when the caller had an “established business relationship” with the consumer. The new rules abolish this exemption. Thus, even if the caller and consumer have an established business relationship, prior express written consent is still required for all autodialed and prerecorded telemarketing calls to residential lines. This change will require many businesses to secure consent from customers on their call lists from whom they do not have written consent.

Additional Revised Rules Already in Effect

Additional restrictions that were also adopted in 2012 are already in effect. Specifically, as of January 14, 2013, all prerecorded telemarketing calls must make an automated, interactive opt-out mechanism available during the call. In addition, the restrictions on the percentage of live telemarketing calls that are abandoned due to the use of predictive dialers (abandonment rate) remain in effect at not more than 3%, but effective as of November 15, 2012, the abandonment rate is measured on a per-campaign basis over a 30-day period.

Compliance Strategies

As a result of the revisions to the FCC rules, all entities that conduct telemarketing campaigns should update their compliance programs. The following practices should be adopted:

• Develop written consent forms to be executed by potential recipients of autodialed and prerecorded telemarketing calls. Because the new rules allow for electronic signatures, develop web or text-message based platforms to solicit consent.
• Solicit written consent from any consumer for whom prior express written consent was not previously collected due to an established business relationship. These consumers are no longer exempt from consent requirements.
• Institute an automated, interactive opt-out feature in all prerecorded telemarketing calls.
• Calculate and document abandonment rates for each calling campaign.

The authors would like to thank Amanda Baker, summer associate, for her invaluable assistance in the preparation of this Client Alert.

Download: New FCC Regulations to Take Effect Regarding Telemarketing Robocalls: All Businesses Marketing By Telephone or Text Must Prepare

1. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830 (2012) (“2012 TCPA Order”). 
2. Moreover, non-profit entities continue to be exempt.