TCPA Regulations 2018
Checklist of the new written consent requirements: FULL ARTICLE CAN BE FOUND AT WWW.ACC.Com
- Identify each specific company to whom consent is being provided
- Identify the consumer’s phone number
- Indicate a clear and affirmative agreement (i.e., I agree/ consent)
- Disclose that the consumer is authorizing the seller to engage in telemarketing (i.e., to receive offers related to the seller’s products or services)
- Disclose that the calls will be made using automated technology
- Disclose that the consumer is not required to provide consent as a condition of purchasing products or services
- Obtain the consumer’s signature (either electronically through E-SIGN or handwritten)
Telemarketing, informational and dual-purpose calls
While the new written consent requirements apply only to telemarketing calls, the range of calls that falls into this category is broader than the label might suggest. Telemarketing calls include those that offer or market products or services to consumers or that have a telemarketing purpose (i.e., induce consumers to purchase goods or services now or in the future).
Telemarketing does not include debt collection calls, calls for political purposes, surveys or research, calls made by loan servicers regarding the servicing of a consumer loan (including those placed by loan servicers pursuant to the American Recovery and Reinvestment Act), or calls made by or on behalf of tax-exempt nonprofit organizations. Purely informational calls (airline notification calls, bank and credit card balance and fraud alerts, school and university notifications, package deliveries and wireless usage notifications) are excluded.
Dual-purpose calls –– calls that have both a customer service or informational message as well as marketing content –– such as text messages alerting consumers that their store coupons are expiring, constitute telemarketing.
A step-by-step analysis to determine whether written consent is required
For residential phones, do calls use an artificial voice or prerecorded message?
- If no, the TCPA does not apply. The TCPA does not prohibit the use of autodialers to call residential phones.
- If yes, proceed to (3).
For mobile phones, do calls use an artificial voice or prerecorded message OR an “automatic telephone dialing system”?
- If no, the TCPA does not apply.
- If yes, proceed to (3).
Does the call contain “telemarketing”?
- If no, the written consent rules do not apply. However, either verbal or written consent is still required for calls made to mobile phones, even if purely informational in nature. Consent may also be required for residential calls if an exemption does not apply.
- If yes, proceed to (4).
Written consent is required prior to initiating the telemarketing call!
If you obtained prior written consent from the consumer before the new rules, evaluate whether it meets the new requirements. If not, consider scrubbing these telephone numbers from your calling list, obtaining new consents or opt-ins, or calling the consumer without the use of automated technology.
Compliance concerns for calling or brokered lists
For businesses affected by the new regulations, compliance requires redesigning websites, creating new signage and documents such as loyalty card applications and business reply cards, implementing new recordkeeping policies, and training and monitoring employees to ensure compliance with the new requirements. Should any question about the consent arise, the seller has the burden of demonstrating that a clear and conspicuous disclosure was provided, and that unambiguous consent was obtained. Thus, good recordkeeping is crucial, particularly when gathering consent in non-traditional ways. Consent records should be maintained for at least four years.
Once new disclosures are in place, companies will have the consent necessary to contact new customers. The more troublesome issue pertains to existing customers. The FCC has made clear that prior verbal consent to make telemarketing calls to these customers is no longer acceptable. While it is clear that non-written forms of consent will no longer suffice, the FCC did not specifically address whether written forms of consent obtained prior to the new rules will be sufficient.
Prior written consent from legacy or existing customers may not meet all the new requirements –– commonly, the disclosures regarding automated technology and consent not being a condition of purchase. Given the long compliance period, the absence of a grandfather clause, and the fact that the FCC did not directly address the issue, best practices dictate getting new consents from existing customers covering any missing requirements, prior to making automated telemarketing calls.
Obtaining new or revised consents from existing customers using automated technology is not without risk, now that the regulations are in effect. While requesting these consents from existing customers would not appear to constitute “telemarketing,” until the courts and/or the FCC provide further clarity, best practices include either not making automated telemarketing calls to existing customers or asking for new consents or opt-ins through other methods, including email, US mail, company-controlled websites or social media platforms, consumer-initiated text messages, in-person transactions or consumer-initiated calls. Companies might also consider calling mobile phones manually from telephone systems that do not have the requisite autodialer capacity under the statute and/or calling residential phones using live operators.
Companies should avoid, if possible, purchasing calling lists from third parties to make automated telemarketing calls. Once you buy and use a calling list, the list effectively becomes yours. Companies engaging in these practices should take all reasonable measures to ensure that consent has been obtained from the consumer that complies with the current rules. This includes requesting and analyzing written documentation of the third party’s policies and procedures, the methods and disclosures used to obtain consent, and evidence of the consent obtained. Purchasing lists obtained through double opt-ins are recommended if the double opt-in process can be verified as reliable. Companies should also consider amending their contractual agreements to include representations and warranties regarding the calling list provided, as well as indemnity provisions in the event a claim is made. For non-telemarketing calls made to mobile phones where the consumer only provided verbal consent, companies would be best advised to scrub these numbers from their calling lists or obtain a form of written consent through other means prior to initiating the call.
The TCPA presents a virtual litigation minefield for companies engaging in automated calling –– and a potential goldmine for class action plaintiffs and their attorneys seeking to take advantage of the statutory damages of $500 to $1,500 per unauthorized call. Having no written consents, poorly drafted consents, or less-than-adequate recordkeeping can result in serious consequences. Corporate counsel should be vigilant in helping their companies adopt policies and practices that ensure valid consent and minimize the risk of compliance failures, especially given the present uncertainty surrounding the interpretation and application of the new rules.
RESTRICTIONS ON THE USE OF AUTOMATED CALL CENTER EQUIPMENT
Calling Emergency Numbers
(1) PROHIBITIONS.—It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States— (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— (i) to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency); (ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B);
BUSINESSES REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS
The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission (A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent; (B) may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the Commission may prescribe— (i) calls that are not made for a commercial purpose; and (ii) such classes or categories of calls made for commercial purposes as the Commission determines— (I) will not adversely affect the privacy rights that this section is intended to protect; and (II) do not include the transmission of any unsolicited advertisement; (C) may, by rule or order, exempt from the requirements of paragraph (1)(A)(iii) of this subsection calls to a telephone number assigned to a cellular telephone service that are not charged to the called party, subject to such conditions as the Commission may prescribe as necessary in the interest of the privacy rights this section is intended to protect; (D) shall provide that a notice contained in an unsolicited advertisement complies with the requirements under this subparagraph only if— (i) the notice is clear and conspicuous and on the first page of the unsolicited advertisement; (ii) the notice states that the recipient may make a request to the sender of the unsolicited advertisement not to send any future unsolicited advertisements to a telephone facsimile machine or machines and that failure to comply, within the shortest reasonable time, as determined by the Commission, with such a request meeting the requirements under subparagraph (E) is unlawful; (iii) the notice sets forth the requirements for a request under subparagraph (E); (iv) the notice includes— (I) a domestic contact telephone and facsimile machine number for the recipient to transmit such a request to the sender; and (II) a cost-free mechanism for a recipient to transmit a request pursuant to such notice to the sender of the unsolicited advertisement; the Commission shall by rule require the sender to provide such a mechanism and may, in the discretion of the Commission and subject to such conditions as the Commission may prescribe, exempt certain classes of small business senders, but only if the Commission determines that the costs to such class are unduly burdensome given the revenue generated by such small businesses; (v) the telephone and facsimile machine numbers and the cost-free mechanism set forth pursuant to clause (iv) permit an individual or business to make such a request at any time on any day of the week; and (vi) the notice complies with the requirements of subsection (d);
Political campaign-related autodialed or prerecorded voice calls
Political campaign-related autodialed or prerecorded voice calls (including autodialed live calls, prerecorded voice messages, and text messages) are:
Not allowed to cell phones, pagers, or other mobile devices without the called party's prior express consent.
Not allowed to protected phone lines such as emergency or toll-free lines, or lines serving hospitals or similar facilities, unless made with the called party's prior express consent.
Allowed when made to landline telephones, even without prior express consent.
All prerecorded voice message calls, campaign-related and otherwise, must include certain identification information:
the identity of the business, individual, or other entity initiating the call (and if a business or corporate entity, the entity's official business name) must be stated clearly at the beginning of the message; and
the telephone number of the calling party must be provided either during or after the message.
Robotexts are text messages generated through autodialing.
Under the TCPA, these are considered a type of call and fall under all the robocall rules. As text messages generally go to mobile phones, they require the called party's prior express consent if they are generated using autodialing.
This spotlight is a summary of the Commission's rules; interested parties should consult the Commission's rules and Order for the full requirements. The relevant rule, 47 CFR 64.1200 can be found at: http://www.ecfr.gov/cgi-bin/text-idx?rgn=div6&node=47:18.104.22.168.11.12.
The Order establishing the rule can be found at: https://docs.fcc.gov/public/attachments/FCC-03-153A1.pdfOpens a New Window..
TCPA TELEMARKETING REGULATIONS
This summary of the Telephone Consumer Protection Act (47 U.S.C. § 227) is provided for convenience only. Individuals should also refer to the United States Code at http://www.gpoaccess.gov.
ARTIFICIAL OR PRERECORDED VOICE SYSTEMS
The Commission shall prescribe technical and procedural standards for systems that are used to transmit any artificial or prerecorded voice message via telephone. Such standards shall require that— (A) all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual; and (B) any such system will automatically release the called party's line within 5 seconds of the time notification is transmitted to the system that the called party has hung up, to allow the called party's line to be used to make or receive other calls.
TELEPHONE FACSIMILE MACHINES
The Commission shall revise the regulations setting technical and procedural standards for telephone facsimile machines to require that any such machine which is manufactured after one year after December 20, 1991 clearly marks, in a margin at the top or bottom of each transmitted page or on the first page of each transmission, the date and time sent, an identification of the business, other entity, or individual sending the message, and the telephone number of the sending machine or of such business, other entity, or individual.
TECHNICAL AND PROCEDURAL STANDARDS
It shall be unlawful for any person within the United States— (A) to initiate any communication using a telephone facsimile machine, or to make any telephone call using any automatic telephone dialing system, that does not comply with the technical and procedural standards prescribed under this subsection, or to use any telephone facsimile machine or automatic telephone dialing system in a manner that does not comply with such standards; or (B) to use a computer or other electronic device to send any message via a telephone facsimile machine unless such person clearly marks, in a margin at the top or bottom of each transmitted page of the message or on the first page of the transmission, the date and time it is sent and an identification of the business, other entity, or individual sending the message and the telephone number of the sending machine or of such business, other entity, or individual.
5/13/13 Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991.
6/17/08 Rules Amended to Require Telemarketers to Honor Do-Not-Call List Registrations Indefinitely.
Washington, DC -- The Federal Communications Commission has amended its rules to require telemarketers to honor registrations with the National Do-Not-Call Registry indefinitely. The previous rules provided that registrations would expire after five years. This action is consistent with Congress’s mandate in the Do-Not-Call Improvement Act of 2007, which prohibits the removal of numbers from the Registry unless the consumer cancels the registration or the number has been disconnected and reassigned or is otherwise invalid. The Federal Trade Commission has already committed to retain numbers on the Registry indefinitely. This rule change serves to minimize the inconvenience to consumers of having to re-register their phone numbers every five years and furthers the underlying goal of the Registry to protect consumer privacy rights. To enhance the accuracy of the Registry, the Commission encourages telephone companies to convey information on disconnected and reassigned numbers to the FTC, the administrator of the Registry, in a timely and accurate manner. The Commission also said it will continue to coordinate with the FTC on additional ways to improve the Registry’s accuracy. Action by the Commission June 11, 2008, by Report and Order (FCC 08-147). Chairman Martin, Commissioners Copps, Adelstein, Tate and McDowell, with Chairman Martin and all Commissioners issuing separate statements. - FCC - CG Docket No. 02-278 CGB contact: Lynne Montgomery at (202) 418-2229