United States: Three Things You Should Avoid Doing With Respect To The October 16 FCC Rule Changes For Calling Or Texting Cell Phones

Last Updated: October 18 2013
Article by Ellen T. Berge

For all of you procrastinators out there, we are down to the wire on preparing for the October 16 changes to Federal Communications Commission ("FCC") rules that will require "prior express written consent" when an automatic telephone dialing system (autodialer) is used to call or text cell phones for marketing purposes.  "Prior express written consent" means the consumer's agreement – in writing and signed, either on paper or as allowed electronically under the E-SIGN Act – that clearly authorizes the seller to deliver telemarketing calls or messages using an autodialer and states the telephone number to which such calls or messages may be delivered.

Moreover, the written agreement must include a clear and conspicuous disclosure that (a) the consumer is authorizing calls to be delivered using an automatic telephone dialing system (or, if applicable, a prerecorded voice), and (b) the consumer is not required to provide consent as a condition of purchasing any property, goods, or services.  For non-marketing, information-only calls and texts, the old "prior express consent" standard (which could be verbal or written) will continue to suffice.  You'll want to be careful about whether your idea of an information-only message is the same as the FCC's.

Here are three things you should know as you finalize compliance with the new rule.

  1. Resist the temptation to find and use call center technology that is arguably not an "automatic telephone dialing system."  To avoid making the new rule meaningless the FCC (and the courts) has taken a very broad view of what different types of equipment could be squeezed into the seemingly narrow and arcane definition of autodialer.  A federal court recently determined that a preview dialer – where the customer's number and other information appears on a screen but a sales agent must press a button to initiate the call – could be an autodialer.  Notwithstanding the human intervention involved in making the call, the court said that the equipment still had the capacity to be an autodialer even if it wasn't being used in that fashion.  If you can't resist temptation and choose to rely on the argument that the equipment you used wasn't actually an autodialer, be prepared for regulators and class action attorneys to vigorously contest that characterization.
  2. Don't find comfort on that substantial list of solid "double opt-in" subscribers you spent years building up for your messaging and other mobile marketing programs.  When the new rules take effect, all of the consents you obtained under the old "prior express consent" standard are no longer valid.  When the FCC issued its revised rules in February 2012, the agency made it clear that once the new written consent rules become effective, companies would no longer be able to rely on non-written forms of express consent to make autodialed calls.  Companies that did not start the transition to the "prior express written consent" standard in the months after the FCC's rules change was announced are now scrambling to find ways to re-opt-in their subscribers under the new consent requirements without losing a significant portion of them.
  3. Resist the temptation to apply common sense.  You may find it odd that when you go back to existing mobile messaging subscribers to ask for fresh consent you have to mention that "your consent is not required as condition of making a purchase" when you aren't, in fact, trying to sell the consumer anything at that point..  Lead generators, who don't actually sell anything, are also finding it odd to tell the consumer that their purchase is not conditioned on providing consent to be contacted.  The FCC included this disclosure requirement in an attempt to reconcile its rules with current Federal Trade Commission ("FTC") consent requirements for robocalling (prerecorded message calls), which specify that marketers cannot condition a purchase on a consumer's agreement to receive robocalls but do not require a disclosure to the consumer about this prohibited conduct.  Unless and until the FCC is persuaded on the impractical impact of its purchase disclosure requirement, your consent may not be required for class action lawyers to find your failure to comply with this disclosure requirement to be a condition for filing a complaint.

One final note: the new FCC rules also require "prior express written consent" to make prerecorded voice calls to wireless or residential numbers, and there is no exception for calls to customers with whom you have an established business relationship ("EBR").  While much has been written about "the elimination of the EBR exemption," telemarketing rules enforced by the Federal Trade Commission ("FTC") for years have prohibited these robocalls without signed, written permission.  The FCC's rule change for prerecorded messages was intended to make its rule consistent with the FTC rule.  Moreover, there was never an EBR exemption for consent rules for autodialed calls and texts to cell phones.  The EBR exemption for federal Do Not Call rules, however, continues to exist.  Do Not Call rules are separate from the rules governing calls to cell phones and prerecorded message calls.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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