FCC Excludes Debt Collectors from Strengthened Regulations on Telemarketing Robocalls
On February 15, 2012, the Federal Communications Commission (FCC) issued a Report and Order (Order) in an effort to “protect consumers from unwanted telemarketing calls pursuant to the Telephone Consumer Protection Act of 1991 (TCPA).” The Order expressly exempts debt collectors making non-telemarketing calls to residential lines from obtaining written consent from a consumer.
The TCPA imposes restrictions on using the telephone network for unsolicited advertising by telephone and facsimile, in particular the use of automatic telephone equipment. The FCC has concluded that both voice and text calls fall within the scope of the TCPA, including short message service (SMS) calls, if the prerecorded call is made to a telephone number assigned to such service.
The purpose of this unanimously adopted Order is to “protect consumers from unwanted autodialed or prerecorded telemarketing calls, also known as ‘telemarketing robocalls,’” and in order to “maximize consistency” with the Federal Trade Commission’s rules established in the Telemarketing Sales Rule pursuant to the Do-Not-Call Implementation Act.
This Order does not require written consent for calls that do not involve telemarketing messages and are made to consumers on residential lines. This represents a significant change from the proposed rules, which considered adopting prior express written consent for all autodialed or prerecorded calls, including debt collection calls. The FCC provided in the Order a non-exhaustive list of such non-telemarketing calls that are exempt from the written consent requirement, which includes debt-collection calls, research and survey calls, and bank account fraud alerts.
Under the Order, only telemarketers must obtain written consent from a consumer before making an autodialed or prerecorded call, regardless of whether they have done business with a particular consumer in the past. The Order provides that written consent from a consumer must be signed and sufficient to show the consumer (1) was provided “clear and conspicuous disclosure” that the consumer will receive future telemarketing calls through prerecorded messages by or on behalf of a specific entity, and (2) unambiguously agrees to receive such calls. Further, written consent can only be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.”
However, written permission to accept a “robocall” can be provided electronically in compliance with the E-SIGN Act, “including permission obtained via an email, website form, text message, telephone keypress, or voice recording.” The FCC believes this will “relieve[] all businesses, including small entities, from the economic impact of generating and retaining a paper document to evidence their compliance.”
This Order eliminates the previous exception allowing telemarketers to make robocalls to consumers with whom they have previously conducted business. Additionally, telemarketers are required to include an opt-out mechanism in each call, which relieves consumers of the obligation to make a separate call to be taken off a calling list.
The FCC’s Report and Order, along with the statements of the Commissioners, can be found here.
Please do not hesitate to contact David Anthony, John Lynch or Ethan Ostroff if you have questions.
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