Telemarketers need to be aware that the Telephone Consumer Protection Act (TCPA) is changing due to consumer concerns with unwanted robocalling. A “robocall” is a prerecorded telemarketing message.
These changes go into effect on October 16, 2013.
The rules were recently updated due to consumer complaints about unwanted prerecorded telemarketing calls and texts, consistently in the top three consumer complaint categories at the Federal Communications. According to the FCC, artificial, or “robocalls” invade consumer privacy, and can in the case of calls to wireless devices, eat up minutes.
- You must get prior WRITTEN consent from an individual before any robocalls can be made; this includes using an electronic form for the signature to the extent such a signature is valid under law such as set forth in the E-SIGN Act or state contract law. The rules for obtaining prior express written consent mirror those required by the FTC for pre-recorded sales messages.
- No more “established business relationship” exemption.
- You must provide Opt-out DURING each robocall for consumers. This means you are required to provide an automated interactive opt-out mechanism during each robocall so that consumers can immediately tell the telemarketer to stop calling.
- There are now strict limits on the number of abandoned or “dead air” calls that you can make within each calling campaign. The permissible 3% call abandonment rate should be calculated for each calling campaign so that telemarketers cannot shift more abandoned calls to certain other campaigns.
- Other kinds of calls not impacted are as follows: Prerecorded informational calls like school closings and flight changes can continue to be available to consumers who wish to receive them. Further, prerecorded calls from entities regulated by the Health Insurance Portability and Accountability Act of 1996 to residences are exempt. Non-commercial calls are also allowed by tax-exempt nonprofit organizations and political organizations.
Exceptions apply for nonprofit organizations; HIPAA regulated entities; political parties; informational calls such as school closings.
DMA also has a detailed backgrounder for members.