The Federal Communications Commission (“FCC”) has refined its rules for automated prerecorded telemarketing calls, or “robocalls.” The new rules took effect on October 13, 2013.
The FCC has the authority to regulate interstate telecommunications via the Telephone Consumer Protection Act of 1991. The FCC has revised its robocall rules to now only allow telemarketing robocalls to consumers after the caller has first obtained the express, written consent of the recipient, bringing its rules in line with the FTC’s rules for intrastate calls. Formerly, the FCC’s rules had only required an established business relationship with the recipient for all telemarketing robocalls made to residential numbers. Under the new rules, an established business relationship is insufficient for making telemarketing robocalls to a residential landline.
The requirements are the same for telemarketing text messages or robocalls calls made to wireless phone numbers. For all other types of robocalls or text messages to wireless numbers, only express consent (not written) is required.
The written consent requirement has three parts. First, the agreement must show that the consumer received “clear and conspicuous disclosure” of the consequences of his/her agreement to receive these calls. Second, the agreement must show that the recipient unambiguously agreed to receive these types of calls. Finally, the consumer’s consent must be given voluntarily, not as a condition of purchasing goods or services. Consent can be obtained electronically from the consumer.
The impact of this change is that all sellers and telemarketers must now obtain the recipient's signed, written agreement to receive prerecorded automated telemarketing calls, even when there is an established business relationship between the parties. In addition, all prerecorded automated telemarketing calls must provide an automated or voice-activated opt-out mechanism so that consumers can opt out from the call.
The FCC’s rules do not prevent companies from using robocalls for messages that are informational in nature, such as calls that reconfirm appointments or reservations. The proposed rules would also not prevent prerecorded calls from political organizations or charities to residential numbers.