In an attempt to harmonize the requirements of the Federal Communications Commission with those of the Federal Trade Commission, the FCC recently issued a report and order addressing prerecorded telephone messages made by automated dialers, most commonly referred to as "robocalls.”
Under the new rules, telemarketers must obtain prior, written, express consent before placing a robocall to a consumer. Electronic means of consent – such as through a Web site form, text message, telephone keypress, or voice recording – are permitted provided that the mechanism complies with applicable state and federal law regarding electronic signatures. However, and most importantly, the FCC eliminated the exemption for an "established business relationship,” which permitted companies to place robocalls to consumers with whom they had previously done business.
Each robocall must also include an automated, interactive opt-out mechanism enabling consumers to immediately choose not to receive future calls, the FCC said. If a consumer selects the opt-out, his or her phone number must be added to the company’s do-not-call list and the call must be immediately disconnected.
Finally, the FCC established a new requirement limiting the number of abandoned or "dead air” calls telemarketers are allowed to make during the course of a calling campaign. Previously, no more than three percent of all calls answered by a consumer over a 30-day period were allowed to be abandoned calls. The FCC tightened this constraint by measuring the three percent cap over the entire time frame of a campaign, not in 30-day intervals.
The report and order do not affect informational robocalls, such as automated calls about airline flights, school notifications, or bank accounts, prerecorded messages by or on behalf of tax-exempt nonprofit organizations, or calls for political purposes.
In a statement, FCC Chairman Julius Genachowski said that the regulations are "minimally burdensome to businesses, including small businesses. Because our rules largely mirror those the FTC applies to telemarketers in its jurisdiction, we have consistent rules applying to all telemarketers, and we avoid confusion for those telemarketers subject to both the [FCC’s] and the FTC’s rules.”
There are some differences between the agencies’ rules, however. While the FTC’s restrictions on robocalls apply just to prerecorded telemarketing calls, the FCC rules apply to prerecorded calls as well as autodialed telemarketing calls. And because the FCC has broader jurisdiction over telemarketing than the FTC, entities will be covered by the rules that were not covered by the FTC’s regs, such as banks and federal credit unions.
To read the FCC’s report and order, click here.
Why it matters: For the most part, the changes will have minimal impact on most marketers as the FCC’s new rules simply bring the agency’s regulations in line with the FTC’s existing regulations. Other than the expanded coverage for a few types of entities – such as banks – the only notable change is the possibility of a private right of action. Under the FTC’s Telemarketing Sales Rule, only the agency can enforce the regulations. But because the Telephone Consumer Protection Act is enforced by the FCC and permits consumer actions, marketers should be aware that suits may be possible under the new rules.