The Federal Communications Commission (FCC) acted today to tighten its rules under the Telephone Consumer Protection Act (TCPA) and conform them, to the extent possible, with the more stringent rules already in place at the Federal Trade Commission (FTC) under the Telephone Sales Rule (TSR). This change will hit hardest entities such as banks which are not subject to FTC jurisdiction, and do not have more stringent compliance programs already in place. Although the FCC’s order has not been released and no information is available yet as to the details of how the revised rules will operate and exactly to what calls they will apply, the following four points are clear:
1. Prior express WRITTEN consent will now be required before making any telemarketing robocall (using an autodialer or a prerecorded message) to a consumer; electronic signatures will be acceptable as evidence of written consent and this change will not apply to purely informational calls (“such as those related to school closings and flight changes.”);
2. The “established business relationship” will be eliminated as an exception to the prior written consent requirement that currently applies in the case of wireline calls;
3. An automated opt-out mechanism will have to be included in each robocall to facilitate a consumer’s ability to withdraw prior consent; and
4. The rules governing abandoned or “dead air” calls will be tightened, including through stricter time limits and by changing those limits to apply to each separate marketing campaign, rather than allowing the limits to be averaged over different calling campaigns, as is currently the case.
We are awaiting further details on exactly how these rules will be applied and when they will become effective. In the interim, please contact the authors of this article or the Reed Smith attorney with whom you normally work.