Last year, the Federal Communications Commission (“FCC”) issued an update to its rules implementing the Telephone Consumer Protection Act of 1991 (“TCPA”). These changes became effective October 16th of this year. At its core, the TCPA requires consent (either express or implied) to make telemarketing calls. Now, the TCPA now requires prior express consent for the majority of telemarketing efforts. In addition, the “established business relationship” exception for calls to a residential landline has been eliminated. Finally, there are additional “opt-out” requirements for any pre-recorded messages. Considering the fact that the TCPA is functionally a “strict liability” statute with statutory damages of $500 to $1500 per violation, this isn’t something that one should ignore. It is too easy of a case for a bored plaintiff’s lawyer to make.
Under the new rules, the FCC now requires that a company must make a “clear and conspicuous disclosure” that a consumer will receive future calls delivered via autodialer and/or pre-recorded message. This has to happen before the consent event. The consent event itself must be in writing, which includes electronic or digital forms of signature as allowed for under the E-SIGN (e.g., email, website form, text message, or telephone keypress). Ultimately, if a consumer challenges the consent, the burden rests with the company to prove that a clear and conspicuous disclosure was made, and that the consumer unambiguously consented to receive the telemarketing contact.
While the TCPA specifically does not call out the form of consent, the FCC has discretion to determine what form of express consent is required. As a result, the FCC concluded that prior express written consent is not required for all telemarketing calls. Note: no consent is required for informational and noncommercial calls to residential lines. However prior express consent is still required for autodial to prerecorded non-telemarketing calls to wireless numbers. Cell phones have always required prior consent. While the prior express consent required for non-telemarketing calls need not be in writing, the record keeping requirements necessary to prove up such consent may make it easier and more desirable to get such a consent in writing anyway.
The FCC does carve out certain types of contact that are not subject to these heightened rule, specifically noncommercial calls or informational calls to residential landlines, such as debt collection, airline notification, bank account fraud alerts, school and university notifications, research or surveys, and wireless usage notifications. However, it bears repeating that all calls made to wireless consumers still requires express written consent.
The other significant change is the removal of the “established business relationship” exemption to the express prior written consent requirement. Under the prior rule, where the caller and the third-party had an established business relationship (previous commercial interaction), additional consents were not required for the purposes of telemarketing calls. Now, the new rule requires prior written consent, even where the caller and the third-party have an established business relationship.
Businesses will need to reevaluate their processes for obtaining consent from those people included on their marketing lists. With the removal of the pre-existing business relationship exception, as well as the expansion of the “prior written consent” rules, businesses who have not evaluated their commercial calling practices may be facing significant liability due to the statutory nature of the damages available under the TCPA.