FCC Also Remedies Confusion in Its Rulemaking Proposal by Ensuring New Rules Do Not Affect Non-Telemarketing Prerecorded Calls and Text Messages, Such as for Debt Collection, Airline and School Notifications, Fraud Alerts, Surveys Calls, and Wireless Usage Data

The Federal Communications Commission released a Report and Order that revises its rules governing automated/prerecorded telemarketing to modify the consent and opt-out requirements for such calls.    The rule change eliminates the “established business relationship” exception that previously allowed autodialed/prerecorded telemarketing to residential lines.  Meanwhile, the FCC was careful to ensure the new rules cover only automated/prerecorded “telemarketing” calls and text messages, i.e., those that seek to sell or advertise goods or services, while leaving intact preexisting regulations for non-sales prerecorded calls, such as customer-care, surveys, calls by or on behalf of tax-exempt, non-profit entities, etc.

In short, the FCC’s R&O operates to:

• Revise its rules to require prior express written, signed consent for all autodialed/prerecorded telemarketing calls to wireless numbers and residential lines.  The consent must specify the phone number to which it applies, be signed (though anything satisfying the E-SIGN Act qualifies), and reflect willingness to receive prerecorded calls in a clear and conspicuous way.  The FCC also specified that the consent cannot be required, directly or indirectly, as a condition for purchasing any good/service.

• Adopt rules applicable to all automated/prerecorded telemarketing calls that allow consumers to opt out of future automated/prerecorded calls during the call.  This requires "promptly" offering an automated interactive keypress or voice-activated opt-out mechanism that permits the called party to make a company-specific do-not-call request.

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