Get it in Writing: Changes to the FCC Express Consent Rules

William E. Raney, Partner – Copilevitz & Canter, LLC

Recent changes to the regulations to the Telephone Consumer Protection Act (TCPA) affect when prerecorded commercial messages are allowed: the standard is now the same under the TCPA and the Telemarketing Sales Rule (TSR). Calls may only be placed with the prior express written consent of the consumer.

The FCC made the changes to “harmonize” the TCPA with the Federal Trade Commission’s TSR, which already requires written consent for prerecorded calls. These changes are significant because several types of entities (i.e. common carriers, banks, insurance companies, and airlines) are not subject to the FTC’s jurisdiction, and therefore, are not subject to the TSR but now are subject to the same standard for prerecorded calls under FCC rules.

The FCC also included a change to the express consent standard required for commercial entities to send prerecorded or text solicitations or predictive-dialed calls to cell phones. See Report and Order CG Docket No. 02-278, available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-21A1.pdf (Feb. 15, 2012).

The new standard requires prior express written consent for predictive dialed and prerecorded advertising or solicitation calls or texts placed to wireless and residential numbers. Pursuant to the amended rule, written consent must include the consumer’s signature, and must show that the sender provided the consumer notice of the consequences of providing consent and the consumer’s telephone number. The signature may be obtained electronically or digitally.

Also be aware that this restriction applies to any system with the capacity to operate as an automated telephone dialing system (which includes live or prerecorded calls using a predictive dialer) or with a prerecorded message. Merely disabling the capacity temporarily (i.e. using “preview mode”) is not sufficient if you call cell phones without prior express consent.

All prerecorded messages for marketing purposes must also include an interactive key-press opt-out disclosure at the beginning of the message which allows the consumer to make a “do-not-call” request during the call.

Written consent can be obtained through a website, where a consumer provides his or her telephone number after acknowledging that he or she consents to receiving prerecorded or text messages at a given number from a specific company.

The FTC has specifically stated that a pre-checked box is not valid consent. Instead, the consumer must be given the option to check a box or choose “submit.”

Other items that should be included in any written consent are references to the specific seller which will be calling or sending messages to the designated number, that the consumer may revoke his or her consent at any time, and that the consumer understands that his or her wireless carrier might impose charges for messages received. If affiliates of the seller might also send messages or place calls, this should be disclosed.

The amended rule leaves unchanged the FCC’s restrictions on prerecorded or text messages by non-profits or political entities and non-telemarketing or advertising calls or texts. The rule specifically provides that non-telemarketing or advertising (i.e. political, non-profit or informational) prerecorded or text messages to cell phone lines are permitted with oral or written express consent.

The changes to the FCC rules implementing this prior written consent requirement go into effect 12 months from the date of publication of the rules in the Federal Register. A 90-day implementation period will be allowed for the interactive opt-out mechanism requirement. As of the date of this article, the rules have not been published.

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