The United States government is one of the largest publishers in the world, equivalent to an $821 million traditional business. Given the amount of financial activity within the government, not to mention the number of private companies and businesses subject to its decisions, it is not surprising how often its laws change and regulations are updated. A major update to the rule came in 2013 with the Telephone Consumer Protection Act, or TCPA. The original law was designed to protect consumers from unwanted, intrusive and automated “robo calls” and has been updated to meet the current needs of the telecommunications industry.
History of the TCPA and the FCC
The TCPA was signed into law in 1991 and is currently overseen by the Federal Communications Commission (or “FCC”). TCPA regulations passed in 2013 allow people to file lawsuits and collect damages for receiving calls that violate the TCPA. Because communication technology changes at the speed of light, the FCC can only try to keep up with this fast pace. As such, they often change their rules to fit the current landscape. For example, according to new data from the Census Bureau, about a third of American households have ditched their landline phones. This change is due in large part to younger Americans relying on their cell phones; however, each year more homes are becoming “cellular only”. As a result, the TCPA rules now apply to cell phone calls and text messages in addition to their current restrictions. SPAM messages of any kind are understood to fall into the same category of unwanted unsolicited communications prohibited by TCAP.
What changed in 2013?
Effective October 16, 2013, three new TCPA rules went into effect: Prior Written Consent: The FCC revised its TCPA regulations to “require prior written consent for all prerecorded or automatically dialed telemarketing calls to wireless numbers and home lines. No “Established Business Relationship” (“EBR”) Waiver: Simply purchasing a product no longer constitutes an established business relationship. Sellers are now required to obtain consumers’ prior written consent, even where there is a better established prior business relationship. This provision is specific to pre-recorded and artificial voice telemarketing calls to any residential line. Opt-out availability: Telemarketers must now provide customers with an easy-to-understand opt-out option through additional messages in an automated menu.
Why?
These new rules serve two purposes. First, requiring prior written consent protects customers from intrusive sales calls and closes loopholes that some marketing companies have exploited to show a prior business relationship. In addition, companies that make telemarketing calls will find these new FCC rules to be more compatible with the FTC’s established rules, making compliance with both agencies easier. And despite their seemingly restrictive nature, marketers may find these regulations beneficial in targeting their messaging and enjoying a higher success rate.
What to do now
As David Klein, a partner at Klein Moynihan and Turco LLC of New York, points out in this article: “Pursuant to the E-SIGN Act, prior written consent may be obtained by digital signature, including via email, website form web, text message, phone keystroke, or voice recording to a specific advertiser; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be contacted (which must not be filled out in advance by the advertiser in an online form. Limited exceptions to this requirement apply, such as calls/texts from the consumer’s cell phone carrier, debt collectors, schools, informational notices, and health care-related calls.” As noted above, the EBR exemption no longer applies to prerecorded telemarketing calls to landline numbers.Advertisers must now expressly consent by e written, regardless of any previous relationship or any importance with the client. These telemarketing law changes do not apply to automated messages delivered from business to business, nor do they apply to many nonprofit organizations. The financial penalties for noncompliance can run into the several million dollars, so it’s worth only working with reputable telemarketing agencies like InTouch Solutions and reviewing the process through your attorney. Additional information about the new TCPA rules can be found here.
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The material in this document is for informational purposes and is not intended to provide legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each marketing situation is unique, and you should not act on or rely on any information contained herein without seeking the advice of an experienced telemarketing attorney.