New federal rules will soon make it more difficult for marketers to call and text cell phones, and class action attorneys are champing at the bit to target companies that fail to meet the stricter compliance requirements.
Beginning October 16, Federal Communications Commission (FCC) rules under the Telephone Consumer Protection Act (TCPA) will prohibit any marketing calls or text messages made using an automated dialing system or "autodialer” to any cell phone number absent the cell phone subscriber’s "prior express written consent.” The requirement that consent be in writing and signed by the consumer is more stringent than the current standard, which requires only oral or written "prior express consent.” The new rule also restricts calls made using an artificial or prerecorded voice, applying the same standard as the Federal Trade Commission’s (FTC) existing "robocalling” rules.
The FCC has made it clear that, starting October 16, companies cannot rely on previous non-written forms of prior express consent to make autodialed and prerecorded voice telemarketing calls to cell phones. Instead, marketers must secure new consent that conforms to the revised rules.
The FCC’s definition of "prior express written consent” requires consent made in writing, bearing the consumer’s signature and listing the phone number to be called or texted. The consent must be accompanied by two very specific disclosures: that the calls or texts will be made using an automated telephone dialing system or an artificial or prerecorded voice; and that the consumer is not required provide consent as a condition of making a purchase.
Written consent may be provided using an electronic form of digital signature under the Electronic Signatures in Global and National Commerce Act (E-SIGN Act). The FCC has said that consent obtained via E-mail, website form, text message, telephone keypress or voice recording could comply with the E-SIGN Act. However, securing consent via these methods in a manner that complies with the prior express written consent standard may be difficult. For lead generators and marketers who aren’t necessarily making a sale when the consent is collected, telling consumers consent to receive cell phone calls cannot be required as a condition of a purchase could cause consumer confusion.
Among the compliance issues related to the new rules is the question of what qualifies as an autodialer. The TCPA and FCC rules provide a very specific definition of the term. Read literally, the definition seems to encompass no modern form of dialing technology. However, the FCC (and, in deference, the courts) have interpreted the definition so broadly that any computerized dialing device could be viewed as an autodialer. It is currently unclear whether preview dialers, or any technology, will be an adequate solution to the autodialer problem.
The good news for some companies is that the "prior express consent” standard will still apply to autodialed calls and text messages made only for informational purposes. This includes messages such as school closings and airline delay alerts, as well as debt collection calls.
Jeffrey D. Knowles and Ellen T. Berge are partners in Venable LLP’s Advertising, Marketing and New Media Group. Annie H. Lee is an associate in the group. They can be reached at (202) 344-4000.