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FCC Requires Consumer Opt-In for Telemarketing Robocalls

Posted on February 27, 2012

Please contact Michael Bennet at mbennet@bennetlaw.com or Bob Silverman at bsilverman@bennetlaw.com for more information.

The Federal Communications Commission (FCC or Commission) has approved new telemarketing rules aimed at empowering consumers against unwanted autodialed or prerecorded calls, or robocalls.  In an order adopted at its most recent open meeting, the Commission has revised its telemarketing rules to add several new restrictions, including an “opt-in” requirement for all telemarketing robocalls, and eliminated the exemption for established business relationships.[1] 

Bottom Line:  The FCC’s new telemarketing rules have generally become more restrictive with respect to telemarketing robocalls, though several categories of robocalls (e.g., charitable, political, informational) remain untouched.

BACKGROUND

 In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) to address the then burgeoning practice of telemarketing, which was often considered to be an invasion of privacy by telephone customers.  Among other things, the TCPA prohibits the use of robocalls when calling a wireless telephone number unless it is an emergency or the caller obtained the prior express consent of the called party (including where an established business relationship has been established between the subscriber and the caller).  In 1992, the Commission implemented regulations stemming from the TCPA that generally prohibited robocalls to residences unless previously authorized by the called party.  However the FCC’s regulations exempted robocalls that are made for a non-commercial purpose, calls made for a commercial purpose that do not contain unsolicited advertisements, calls made to a person with a prior business relationship, and calls by a not-for-profit organization.

In 2010, the Commission issued a notice of proposed rulemaking to amend its telemarketing rules that would conform them to the telemarketing rules of the Federal Trade Commission (FTC). The Commission’s proposals included: (1) requiring sellers and telemarketers to obtain consumers’ prior express written consent to receive telemarketing robocalls even when there is an established business relationship between the caller and the consumer; (2) requiring that telemarketing robocalls include an automated, interactive mechanism by which a consumer may “opt-out” of receiving future prerecorded messages from a seller or telemarketer; (3) adding an exemption for certain federally regulated health care-related robocalls; and (4) adopting a “per-calling-campaign” standard for measuring the maximum allowable rate of abandoned robocalls.  

THE ORDER

The Commission’s amended telemarketing rules (a) require telemarketers to first get prior express written consent before placing a robocall to a consumer; (b) eliminate the “established business relationship” exemption that previously had permitted telemarketing robocalls to residential wireline phones without prior express consent; (c) require telemarketers to provide an automated “opt-out” mechanism during robocalls that are made; and (d) limit the abandoned or “dead air” calls that telemarketers can make within a calling campaign.  The FCC’s telemarketing rules will continue to permit informational robocalls (such as school closings and flight changes) and robocalls for charitable and political purposes.   Also, the Commission expressly exempts all health care-related robocalls to residential lines subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Prior Express Written Consent

The Commission’s amended rules require prior express written consent for all telephone calls using an automatic telephone dialing system or a prerecorded voice to deliver a telemarketing message to wireless numbers and to residential lines.  The Commission states that this amended rule is substantially supported by the record and the volume of consumer complaints regarding unwanted telemarketing robocalls, and is consistent with the statutory goal of the TCPA of harmonizing its rules with the FTC’s telemarketing rules.  The prior written consent requirement can include consent obtained via an email, website form, text message, telephone keypress, or voice recording consistent with the FTC’s telemarketing rules and the Electronic Signatures in Global and National Commerce Act (E-SIGN) Act.

The Commission notes that the expanded opt-in requirement applies only to telemarketing robocalls.  It otherwise maintains the existing rules for non-telemarketing robocalls (non-profit, political, or other noncommercial purposes) and those that deliver purely informational messages, such as school closings.  For these non-telemarketing and information calls, oral consent is required to make robocalls to wireless consumers and no prior consent is required to make robocalls to residential wireline consumers. 

Established Business Relationship Exemption

The Commission’s amended rules eliminate the established business relationship exemption for telemarketing robocalls made to residential lines.  This exemption had previously existed as a safe harbor for businesses to solicit their existing customers with telemarketing robocalls.  Here, the Commission concludes that this amended rule serves the public interest based on overwhelming complaint data showing that thousands of consumers remain unhappy with telemarketing robocalls even when they have an established business relationship with the caller.  This finding is similar to the FTC’s records, which had over 13,000 comments opposing the established business relationship exemption. 

Opt-Out Mechanism

The Commission’s amended rules require that any telemarketing robocall that could be answered by the consumer in person provide an interactive opt-out mechanism.  The mechanism must be announced at the outset of the message, remain available throughout the duration of the call, automatically add the consumer’s number to the seller’s do-not-call list, and immediately disconnect the call.  Previously, a consumer who did not wish to receive further telemarketing robocalls could only “opt out” of receiving such calls by dialing a telephone number that was required to be provided in the prerecorded message. 

Abandoned Calls/Predictive Dialers

To address the problem of dropped calls resulting from the use of predictive dialers, the Commission had previously adopted a rule holding that a telemarketer (a) may abandon, during a 30-day period, up to three percent of calls answered by a person; and (b) must deliver a prerecorded identification message when abandoning a call.  Here, the Commission modifies its abandoned call limit to require that the three percent call abandonment rate be calculated for each calling campaign, though assessing the call abandonment rate would still occur using 30-day periods. This revised requirement is intended to stop telemarketers from averaging abandoned calls across multiple calling campaigns in order to meet the Commission’s requirements. 

HIPAA and Other Exempted Robocalls

The Commission adopted an exemption from its telemarketing requirements (i.e., consent, identification, time-of-day, opt-out, and abandoned call rate) for all prerecorded health care-related calls to residential lines that are subject to HIPAA in light of the privacy protections afforded to consumers under the statute.  Otherwise, the Commission did not adopt any changes to the treatment of other categories of robocalls that are exempt from to the Commission’s telemarketing requirements.  These include calls on behalf of tax-exempt, non-profit organizations; calls for political purposes, including political polling calls and other calls made by politicians or political calling campaigns; and calls made for other noncommercial purposes, including informational messages (e.g., airline flight updates, school notifications) and emergency messages.

CONCLUSION

All companies that engage in telemarketing campaigns and/or utilize robocalls need to be aware of these more restrictive provisions relating to telemarketing robocalls.  If you have questions regarding the order or the FCC’s telemarketing rules, please contact us.



[1]Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, FCC 12-21 (rel. February 15, 2012).