Are You Ready for the New Telephone and Text Marketing Rules?

by BakerHostetler
Contact

Effective October 16, 2013, the rules governing telephone and text marketing will significantly change. Under prior Federal Communications Commission (FCC) regulations issued under the Telephone Consumer Protection Act (TCPA) (47 U.S.C. 227), telephone and text marketers could telephone and text market to consumers' residential phones using autodialing equipment that is standard in call center operations, based either on having "express consent" from a consumer or because of a "pre-existing business relationship" with that consumer. For any autodialed call to a wireless phone, "express consent" was required, but was deemed to have been obtained, for example, if the consumer had provided his or her wireless number to the company as the desired contact number.

Companies will now need to be able to prove that they have the "express written consent" of consumers to market to their mobile phones using autodialing equipment, and, if the company utilizes a recorded or artificial voice, any autodialed marketing calls to residential lines will also require such "written" consent (47 C.F.R. 64.1200).

While there are various electronic means of obtaining the required "written" consent, it must be "unambiguous." This means that: (i) consumers must receive a "clear and conspicuous disclosure" that they will receive future calls or texts that deliver autodialed or pre-recorded telemarketing messages on behalf of a specific advertiser; (ii) consent must not be a condition of purchase; and (iii) consumers must designate a phone number at which to be reached (which should not be pre-populated by the advertiser in an online form).

If a dispute concerning consent arises, the advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive telemarketing calls to a number that he or she specifically provided. Agreements obtained in compliance with the E-SIGN Act will satisfy the requirement that the consent be "written," e.g., agreements obtained via email, text message, telephone keypress, voice recording, or a website form. Advertisers should maintain each consumer's written consent for at least four years, which is the applicable federal statute of limitations.

The risks of disregarding this rule change are severe. Consumers receiving calls in violation of the TCPA may sue for statutory damages ranging from $500.00 to $1,500.00 per unsolicited call or message. The amount of statutory damages awarded may depend on the extent to which a marketer "willfully" or "knowingly" violated the TCPA. The fact that telemarketing campaigns often involve thousands, or even millions, of calls or text messages has made the TCPA a favorite statute of plaintiff class action attorneys. The availability of statutory damages provides a basis for plaintiffs to evade "standing" defenses that often block privacy class action suits. Many class actions fail where the putative plaintiffs cannot establish an "injury" giving rise to a legal remedy.

The TCPA was enacted in 1991 in an effort to deter unsolicited telemarketing calls and faxes. "Telemarketing calls" have been interpreted under case law and regulations as virtually any calls or text messages offering or marketing products or services to consumers -- including calls that have a mixed purpose of providing information and selling products or services.

FCC regulations define an "autodialed" call as any call made from a telephone dialing system that can produce or store and call telephone numbers using a random or sequential number generator. Importantly, these regulations may treat a call as "autodialed," even when it is manually dialed, if it is made from a system that has the capacity to "autodial." If you are using call center software as part of your telemarketing operations, you may be using an autodialer within the FCC's definition.

Both the Federal Trade Commission (FTC) and the FCC are empowered to issue rules and regulations implementing the TCPA. The recent changes in the FCC regulations make it consistent with existing FTC regulations. But the FTC regulations do not apply to companies in many industries -- such as financial services, telecommunications and transportation -- and do not apply to "intrastate" commerce. The FCC regulations will therefore have a broader effect on many marketing campaigns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!