Legal Alert: New TCPA Rules Take Effect for Telemarketing Calls

by Eversheds Sutherland (US) LLP

Significant regulatory changes are taking effect under the Telephone Consumer Protection Act (TCPA) on October 16, 2013, due to a revision of the Federal Communications Commission’s (FCC) TCPA rule. The amended rule will now require that consent be in writing for autodialed or prerecorded telemarketing calls to cell phones. The amended rule also eliminates the exception for prerecorded telemarketing calls to landlines where there is an established business relationship. Instead, under the new rule, written consent will be required for prerecorded telemarketing calls to landlines.

The FCC’s TCPA Rule and Revision

The TCPA regulates certain telemarketing and informational calls, texts, and faxes that are made using an automatic dialer or prerecorded message.1 The FCC adopted a rule under the TCPA that generally prohibits making telephone calls to cell phones using an automatic dialer or prerecorded message without the “prior express consent” of the party receiving the call. This rule applies to both telemarketing calls and non-telemarketing calls such as debt collection calls or informational calls. The rule also prohibits telemarketing calls to landlines using a prerecorded message without prior express consent, except that prior express consent has not been required where the caller has an established business relationship with the call recipient.2 The rule does not apply to non-telemarketing calls to landlines, or to calls that are manually dialed using an in-person caller.

The amended rule taking effect on October 16, 2013 will now require “prior express written consent” for many telemarketing calls.3 Specifically, “prior express written consent” will be required for autodialed or prerecorded calls or texts to cell phones. The new “prior express written consent” requirement will also apply to prerecorded telemarketing calls to landlines, and there is no longer any exception for established business relationships.  For non-telemarketing calls to cell phones, the standard remains “prior express consent” and does not introduce the requirement that the consent be in writing. As before, the new rule does not cover non-telemarketing calls to landlines and calls that are manually dialed using a live operator.

For purposes of the new rule, the term “prior express written consent” means an agreement in writing, with a “signature” that “clearly authorizes” the seller to make telemarketing calls or texts using an autodialer or prerecorded voice. The agreement must contain the specific telephone number or numbers to which calls can be made, and the person giving consent cannot be required to give consent as a condition of purchase.  Significantly, consent obtained pursuant to the E–SIGN Act satisfies the requirement of the revised rule.4 Therefore, consent obtained via an email, a website form, a text message, a telephone keypress, or a voice recording is sufficient under the new rule.

Developments in TCPA Class Action Settlements

The TCPA provides a private right of action and continues to spawn class action litigation and settlements. The TCPA provides for minimum statutory damages of $500 per violation without any total damages cap in a class action.5 There have been a number of large TCPA settlements in recent months. At the end of September, Bank of America agreed to settle a putative class action under the TCPA for a reported amount of $32 million, which was reported as the largest TCPA settlement to date.6 Another pending settlement this year includes a class action against Papa John’s, in which the parties announced a $16.5 million settlement in May.

With the new FCC rules and ongoing litigation risk, companies will need to adopt procedures to obtain written consent where appropriate and to maintain adequate records of the specific details of that consent.

1 47 U.S.C. § 227.

2 47 C.F.R. § 64.1200.

3 47 C.F.R. § 64.1200; see also Federal Register, Vol. 77, No. 112.

4 Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 (2000).

5 47 U.S.C. § 227(b)(3) (A court may award up to $1500 per violation for willful or knowing violations.).

6 The settlement resolved several pending cases, including Rose v Bank of America, No. 11-CV-2390 (N.D. Cal.).


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.

© Eversheds Sutherland (US) LLP | Attorney Advertising

Written by:

Eversheds Sutherland (US) LLP

Eversheds Sutherland (US) LLP 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.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

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.


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 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:

- 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.