Please Note: Telemarketing, Robocalls & Autodialers “clarified” rules by FCC:
Nonprofit organizations use telemarketing for inbound and outbound fundraising as an important marketing channel. Due to an increase in bad actor activity with robocalls on mobile devices, the FTC & FCC have taken a sharp look at current rules. As a result, new clarifications issued in July 2015 must be reviewed by nonprofit organizations to ensure compliance.
On July 10, 2015, the Federal Communications Commission (“FCC”) released the text of its omnibus Declaratory Ruling and Order (“TCPA Declaratory Ruling and Order”) which the Commission adopted by a 3-2 vote almost a month earlier, on June 18, 2015.
In the ruling, the FCC responded to 21 petitions by a number of companies and trade associations, including the DMA, regarding the requirements of the Telephone Consumer Protection Act of 1991 (“TCPA”). The ruling, which applies to phone, text, mobile outreach, redefines the equipment definition for “autodialer,” specifies liability for calls to “reassigned” telephone numbers, allows callers to contact the reassigned number one time (only) to confirm whether or not the number has been reassigned, provides consumers with a right to revoke consent (as required by TCPA) by any “reasonable” means, and establishes new exceptions for financial and healthcare-related calls. The ruling clarifies that carriers and VoIP providers are allowed to implement call blocking technologies upon the request of consumers who want to use such technologies to block unwanted calls. It permits entities to send a one-time text immediately in response to a consumer’s request for information, and provides an additional 90 days to replace prior consents (a DMA petition request) with consent obtained using the language required in the FCC changes that took effect in October, 2013.
Member Issue – Reassigned Numbers: If an individual changes their assigned number, how would the caller/seller know not to call that number without proper consent? Individuals do not always alert the caller when they change numbers, and there is no single database that tracks every consumer and his/her number. Callers fear they could face TCPA liability if they mistakenly call a reassigned number.
(Federal Communications Commission, In the Matter of Rules and Regulations Implementing the TCPA of 1991, FCC 15-72, 7.10.15)
FCC ORDER EXCERPT:
“The FCC finds that where a caller believes he has consent to make a call and does not discover that a wireless number had been reassigned prior to making or initiating a call to that number for the first time after reassignment, liability should not attach for that first call, but the caller is liable for any calls thereafter. The caller, and not the called party, bears the burden of demonstrating: (1) that he had a reasonable to basis to believe he had consent to make the call, and (2) that he did not have actual or constructive knowledge of reassignment prior to or at the time of this one-additional-call window we recognize as an opportunity for callers to discover reassignment.
We emphasize that the TCPA does not prohibit calls to reassigned wireless numbers, or any wrong number call for that matter. Rather, it prescribes the method by which callers must protect consumers if they choose to make calls using an autodialer, a prerecorded voice, or an artificial voice. In other words, nothing in the TCPA prevents callers from manually dialing. Callers could remove doubt by making a single call to the consumer to confirm identity. Even if the consumer does not answer, his or her voicemail greeting might identify him or her. Callers can also email consumers to confirm telephone numbers. Consumers who receive the types of messages Petitioners describe, such as bank and health- related alerts to which they have consented, can reasonably be expected to respond to such email requests to inform callers about number reassignments. In other words, callers have options other than the use of autodialers to discover reassignments. If callers choose to use autodialers, however, they risk TCPA liability. Consumers switched numbers at the time Congress passed the TCPA and callers undoubtedly called wrong numbers, yet we see nothing in the law or legislative history suggesting that Congress intended lesser—or no—protection for the unfortunate consumer who inherited a new number or happened to be one digit off the intended number.
A caller might obtain actual knowledge of reassignment in a number of ways, such as by the called party informing the caller that he or she is a new subscriber to the number or that the caller has reached a wrong phone number, by accessing a paid database that reports the number as having a high probability of reassignment, by a caller’s customer reporting a new phone number prior to receiving a call, or by receiving information from a wireless carrier that the number is no longer in service or has been reassigned. A caller receives constructive knowledge of reassignment by making or initiating a call to the reassigned number, which often can provide a reasonable opportunity for the caller to learn of the reassignment in a number of ways, including by hearing a tone indicating the number is no longer in service or hearing a name on a voicemail greeting that is different from the name of the party the caller intended to call.
In other words, callers have options other than the use of autodialers to discover reassignments. If callers choose to use autodialers, however, they risk TCPA liability. Consumers switched numbers at the time Congress passed the TCPA and callers undoubtedly called wrong numbers, yet we see nothing in the law or legislative history suggesting that Congress intended lesser—or no—protection for the unfortunate consumer who inherited a new number or happened to be one digit off the intended number.”
To review the FCC’s overview of the rules regarding robocalls and automated texting restrictions, click here.