Changes to the Telephone Consumer Protection Act Effective October 16, 2013

November 11, 2013Articles
The Telephone Consumer Protection Act of 1991, 47 USC 227, et. seq. (“TCPA”) and the accompanying Federal Communications Commission rules (47 CFR 64.100, et. seq.) ban many phone calls and text messages that are sent to a mobile phone using an automatic dialing system (“ATDS”) as defined in the TCPA. The ban is complete unless the recipient previously gave consent to receive the message or the message was sent for emergency purposes. Prior to October 16, 2013, consent could be inferred from an existing business relationship between the sender and the recipient.

On October 16, 2013, the rules were supplanted, in part. The FCC will now require prior written and unambiguous consent by any person receiving calls from an ATDS. Calls include SMS text messages and even Mobile Service Commercial Messages (MSCMs) (email delivered to a cell phone, pager, or other wireless device). Accordingly, any messages sent to a wireless device using an automated dialing system or ATDS will be governed by the new TCPA regulations.

Pre-recorded telemarketing messages may no longer be sent to wireless numbers or residential numbers without prior express written consent and all such prerecorded telemarketing messages must include a DNC automated, interactive voice and/or key-press-activated opt-out mechanism which will immediately terminate the call. This eliminates the previous exemption in the TCPA for calls to a consumer’s residential land line if the caller had an established business relationship with the consumer. Companies who use automated systems for debt collection or information purposes should consult with a legal professional to ensure full compliance with the new TCPA.

As of October 16, any marketer sending commercial messages to a cell phone, pager, or other wireless device, whether by voice, SMS, or MSCM must do all of the following to avoid liability:
  1. Identify the company to whom consent is being provided;
  2. Include the consumer’s cell phone number;
  3. Obtain an affirmative written agreement;
  4. Clearly and conspicuously disclose that the consumer is authorizing the seller to engage in telemarketing and mobile marketing and that calls may be made with an ATDS.
  5. Disclose that the sender is not required to provide consent as a condition of purchasing goods or services; and
  6. The consumer may revoke his or her authorization to receive further calls or messages at any time. Such revocation does not need to be in writing.

What is Prior Written Express Consent?

Prior written express consent must be unambiguous and cannot be “inferred” by a consumer’s mere click on a hyperlink on a company’s website. Mass marketers should mandate that a consumer acknowledge by clicking “agree” next to a statement that says, “I hereby consent to receive telemarketing calls and messages from or on behalf of [Company] at the phone number provided above, including my wireless number. I understand these calls and messages may be in the form of SMS or MSCM and I further understand that consent is not a condition of purchase.”

Forms of Consent

A. Physical Forms like customer agreements/contracts; order forms; and business reply cards must include a date and be maintained by the seller although they may be scanned and stored electronically.

Suggested Disclosure: By signing below, I consent to receive calls from Company regarding Company’s products and services at the phone number(s) above, including my wireless number, if provided. I understand I may be charged by my wireless carrier for such calls and that such calls may be generated by an automated dialing system. I also understand that consent is not required in order to buy products or services from Company.

B. Online Forms like lead generation forms or preference centers must include names,
telephone numbers, time/date of consent, the consumer’s IP address, and the URL of the consent page containing the exact consent language.

Suggested Disclosure: By checking this box (cannot be pre-populated) and submitting this form, I consent to receive calls from Company regarding Company’s products and services at the phone number(s) above, including my wireless number, if provided. I understand there may be a charge by my wireless carrier for such calls and that such calls may be generated by an automated dialing system. I also understand that consent is not required in order to buy products or services from Company.

C. Emails including replies with affirmation or consent. Copies of emails must be maintained by the seller.

Suggested Disclosure: Company may occasionally have products or services that may be of interest to you. Do you consent to us calling you on your wireless number to inform you of such products or services? Please be advised there may be wireless charges associated with these calls and such calls may be made using automated dialing systems. If you consent, please reply to this e-mail and state “I consent” and provide your wireless number and your name.

D. Text messages and mobile calls.

The seller has the burden of proof to show that the recipient provided written consent to be called. Marketers should obtain and retain a screen shot of this consent for each and every consumer for a period of five years and ideally should capture the data record submitted by the consumer along with the consumer’s IP address. Companies should review their current record keeping procedures to prepare for the new requirements.

Sellers will want to continue checking numbers against the state, federal and wireless Do Not Call registries but under the new regulations, express written consent can revoke a previous DNC registration.