Thursday, February 16, 2012

FYI: FCC Issues Final Rules on Telemarketing, Telephone Calls to Customers, and Related Requirements and Exemptions

As widely reported in the news media, the Federal Communications Commission (FCC) recently issued its latest rules implementing the Telephone Consumer Protection Act of 1991 (TCPA), intending to provide greater consistency with the Federal Trade Commission's (FTC) analogous Telemarketing Sales Rule (TSR), as contemplated by the Do-Not-Call Implementation Act (DNCIA).
Among other things, the new rules:  (1) require prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines, and eliminate the established business relationship exemption for such calls to residential lines, but maintain flexibility in the form of consent needed for purely informational calls; (2) requires all prerecorded telemarketing calls to allow consumers to opt out of future such calls during the call; and (3) revises the FCC's prior rules to limit permissible abandoned calls on a per-calling campaign basis, in order to discourage "intrusive calling campaigns."
First, the final FCC rules require prior express written consent for what the FCC calls telemarketing "robocalls" (i.e., automatic telephone dialing system or a prerecorded voice to deliver a telemarketing message) to wireless numbers and residential lines.
Prior express written consent may be given in electronic or digital form if recognized by state contract law, must provide clear and conspicuous consent to future calls by a specific seller, and must impart unambiguous consent to receive telemarketing calls at a specific number.
This requirement does not apply to auto-dialer and pre-recorded message calls that do not contain telemarketing messages (e.g., regarding debt collection, bank account balance, credit card fraud alert, package delivery, and other informational or non-commercial communications), if the calls are made to residential landline users.  However, if the calls are made to wireless consumers or other specified recipients, prior express written or oral consent is allowed.
Importantly, home loan modification and refinance calls placed pursuant to the American Recovery and Reinvestment Act "generally are not solicitation calls and do not include or introduce an unsolicited advertisement, when those calls are made by the consumer's loan servicer, because the primary motivation of the calling party is to comply with that statute's outreach requirements."
However, the FCC notes that challenges to such calls alleging that the primary motivation appears to be sending a telephone solicitation or unsolicited advertisement rather than complying with the Recovery Act, will be considered based on the specific facts on a case-by-case
Also, if a Recovery Act auto-dialed or pre-recorded message call is made to a wireless number, prior express written or oral consent is required.
In addition, the final FCC rules eliminate the "established business relationship" (EBR) exemption as it previously applied to auto-dialed and pre-recorded message telemarketing calls to residential lines.  The FCC emphasized that its decision "to eliminate the established business relationship exemption is consistent with the FTC's findings rejecting an EBR exemption and the DNCIA's requirement that the Commission 'maximize consistency' with the FTC's approach in this area."
Second, the final FCC rules require telemarketers "to implement an automated, interactive opt-out mechanism for telemarketing robocalls, which would allow a consumer to opt out of receiving additional calls immediately during a robocall."
Third, the final FCC rules address abandoned calls and "predictive dialer" systems (i.e., calling systems that initiate phone calls while callers are talking to other consumers and frequently disconnect those connected calls when a caller is otherwise occupied and unavailable to take the next call, resulting in a hang-up or dead-air call). 
Intending consistency with the FTC's method for determining whether a telemarketer's "abandoned" call rate is within the lawful numerical limits for such calls, the FCC's final rules require that the three percent call abandonment rate be calculated for each calling campaign. The FCC states this provision is intended to prevent telemarketers from shifting more abandoned calls to certain campaigns, as is possible if calculation is made across multiple calling campaigns.

Ralph T. Wutscher
McGinnis Tessitore Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
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