What are the New TCPA Rules for Telemarketers that go into effect on October 16, 2013?
On October 16, 2013 new Federal Communications Commission (“FCC”) restrictions on telemarketing calls and text messages become effective. The amendment to the Telephone Consumer Protection Act (“TCPA”) outlines the circumstances under which telemarketers and companies that act “on behalf of” others can contact consumers.
There are two significant changes that apply to telemarketing companies that reach consumers via fax, text, pre-recorded or autodialed calls. The TCPA defines the calls made for marketing purposes to include those made by advertisers that offer or market products/services to consumers.
The first change is that the new regulations eliminate the exception to the prior consent requirement for existing business relationships. There is no existing business relationship exceptions provided for neither prerecorded calls nor those made using an ATDS.
Second, a prior express written consent agreement is required before making a telemarketing call or text message to any wireless number using: an automated dialing system (“ATDS”) or an artificial or prerecorded voice, or before calling a residential line using a prerecorded voice to deliver the message.
The consent agreement must:
• Be unambiguous. Include a clear and conspicuous disclosure stating that the consumer will receive a call/text/fax via an automatic telephone dialing system and/or prerecorded voice from a specific seller.
• Be signed by the party being called. The signature can include any electronic or digital form of signature recognized under applicable state or federal law, including any signatures that satisfy the E-SIGN Act. Acceptable methods are agreements obtained via email, website form, telephone keypress or voice recording. When obtaining consent via text messaging, it is suggested that SMS consent is not enough. A double opt-in process is a good idea, with the party being called directed to a company controlled website to give consent. In all cases using forms, the checkbox and phone number should not be pre-populated and the consumer’s phone number should appear on the same page as the consent, along with a time and date stamp.
• Specifically authorize the seller to deliver ads or messages using an ATDS or prerecorded message to a specific number. This should include a list detailing all affiliates/partners, if any.
• Disclose that consent to receive autodialed calls or prerecorded voice messages are not required as a condition of purchase.
In the event of a dispute, telemarketers bear the burden of proof. Best practice is to keep copies of all written agreements for a minimum of four years from the last date that the consent was relied upon to initiate a call.
The only exemption to the new rules that does not require the consent of the party being called are calls made for emergency purposes, such as a banking fraud alert or airline notification for example. Calls made by or for nonprofit, tax-exempt organizations are allowed, as are calls/texts from the consumer's cellular carrier, schools, informational notices, research surveys and healthcare-related calls. Debt collection calls to residential phones are also allowed. Healthcare related calls or messages made by or on behalf of a "covered entity" or "business associate" must meet additional requirements as defined in the Health Insurance Portability and Accountability Act (“HIPAA”).
The revised regulations include additional requirements that are already in effect. These requirements are related to abandoned and dropped call rates and automated opt-out mechanisms for prerecorded telemarketing messages. Interactive opt-out mechanisms must be announced at the outset of the message and be available throughout the duration of the call. Advertisers are additionally required to keep records of “abandoned calls” and average no more than 3% for each campaign over a 30-day period.
Failure to comply puts companies at risk of class action lawsuits and regulatory investigations, as well as damages ranging from $500 to $1500 per unsolicited telemarketing call or message, if it can be shown that the caller “willfully or knowingly” violated the statute.
For more information, see here: https://www.fcc.gov/document/telephone-consumer-protection-act-1991
These materials were obtained directly from the Federal Government public websites and are posted here for your review and reference only. No Claim to Original U.S. Government Works. This may not be the most recent version. The U.S. Government may have more current information. We make no guarantees or warranties about the accuracy or completeness of this information, or the information linked to. Please check the linked sources directly.