By: Matt Foree
On October 16, 2013, new Federal Communications Commission (“FCC”) regulations regarding the Telephone Consumer Protection Act (“TCPA”) became effective. The TCPA prohibits, among other things, certain telemarketing calls made using an automatic telephone dialing system or an artificial prerecorded voice.
The new TCPA regulations affect certain calls exempted from the Act based on prior express consent. For example, the new regulations provide that those making telephone calls using an automatic telephone dialing system or a prerecorded voice to deliver a telemarketing message to wireless and residential lines must obtain the prior express written consent of the recipient of the calls. Previously, the TCPA did not require that consent be in writing.
As to the form of the consent, the rules require that it must be signed and sufficient to show that the consumer received “clear and conspicuous disclosure” of the consequences of providing consent and, with such information, the consumer agrees to receive such calls at a telephone number designated by the consumer. The agreement cannot be obtained as a condition of purchasing a good or service. If a question about consent arises, the seller bears the burden of demonstrating compliance with the consent requirements. Electronic consent is permissible under the rules. Specifically, consent obtained in compliance with the E-SIGN Act, including via email, text message, or voice recording, satisfies the requirements of the rule.
The new regulations do not require written consent in all cases. For example, prior written consent for telephone calls is not required when the calls are for non-telemarketing, informational purposes, such as those by a tax-exempt non-profit organization or calls for political purposes. The rules regarding these types of calls continue to allow oral consent if made to wireless consumers and certain other recipients, and will continue to require no prior consent if made to residential lines.
The new TCPA regulations also eliminate the established business relationship exemption for prerecorded telemarketing calls to residential lines. Consequently, telemarketing calls to residential telephone lines will require prior written consent. In issuing the regulations, the FCC noted that complaints about calls based on an established business relationship show that such a relationship does not necessarily result in a recipient’s willingness to receive calls.
The TCPA provides statutory penalties of $500 per violation or $1500 per violation for willful or knowing violations. Because the penalties can quickly add up as part of a telemarketing campaign, those making calls subject to the TCPA would do well to ensure that they are compliant with the new regulations.