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By: Matt Foree
On October 16, 2013, new Federal Communications Commission (“FCC”) regulations regarding the Telephone Consumer Protection Act (“TCPA”) become 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 autodialed or prerecorded telemarketing calls to wireless numbers must obtain the prior written consent of the recipient of the calls. Previously, the TCPA did not require that consent be in writing, but could be given orally and case law permitted reliance on the consent exemption if the recipient of the call had provided his or her telephone number to the calling party. The new regulations do not require written consent in all cases. For example, prior written consent for the calls is not required where the wireless customer is not charged for the call or 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 new TCPA regulations also eliminate the established business relationship exemption for prerecorded telemarketing calls to residential lines. This exemption only applied to prerecorded calls to residential lines and not to autodialed or prerecorded calls to wireless numbers. 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 up to $1500 per call for willful violations. As such, those making calls subject to the TCPA would do well to ensure that they are compliant with the new regulations.