• FCC TCPA Revision Rules Made Final
  • July 7, 2012 | Authors: Louis J. Levy; S. Jenell Trigg
  • Law Firm: Lerman Senter PLLC - Washington Office
  • As we discussed previously here, the FCC has adopted rules placing additional restrictions on “robocalls” - unsolicited autodialed or pre-recorded telemarketing calls to consumers. As text messages are governed by these rules, they can have broad implications on popular text messaging campaigns such as alerts for weather, sports, news, election updates and traffic, especially messages that also contain a sponsor identification or unsolicited advertisement.

    The rules, which harmonize the implementation of the Telephone Consumer Protection Act of 1991 (“TCPA”) with the rules of the Federal Trade Commission, have recently been published in the Federal Register. Publication establishes the following effective dates for the rules:

    • Not later than July 11, 2012, the number of “abandoned” or “dead air” calls a telemarketer may make are limited to three percent of all calls within each calling campaign.

    • Not later than September 9, 2012, telemarketers must provide an automated, interactive “opt-out” mechanism within each robocall that allows consumers to decline to receive further calls. This means that commercial text messages must also include an “opt-out” mechanism.

    • Not later than June 11, 2013, telemarketers will be required to obtain prior express written consent from consumers for all telephone calls using an automatic telephone dialing system or pre-recorded voice to deliver a telemarketing message to wireless or residential lines. This consent must be obtained in writing or through a website form, user-initiated text message, telephone keypress or voice recording. These procedures will phase out telemarketers’ reliance on the “established business relationship” exemption in the TCPA for prerecorded telemarketing calls to residential lines, and will foreclose the ability of telemarketers to claim an established relationship with a consumer as evidence of that consumer’s consent to receive a robocall. As indicated above, this requirement also applies to commercial text messages. Accordingly, by June 11, 2013, telemarketers must also obtain prior written consent before sending any commercial text message to a consumer.

    In view of the requirements described above, we encourage clients to carefully review their telemarketing practices - including current text messaging campaigns, and the administration of contests and sweepstakes via text messaging - to ensure that these practices comply with the new rules.