The Federal Communications Commission (FCC) recently amended requirements concerning artificial or prerecorded voice calls, effective July 20.[1] See Proposed 47 C.F.R. § 64.1200. Notably, the FCC amended requirements concerning prerecorded noncommercial and nontelemarketing commercial calls by (1) placing a cap on the number of calls to up to three calls within a consecutive 30-day period, unless the caller has obtained prior express consent, and (2) requiring callers to provide specific opt-out mechanisms.

1. Noncommercial calls: Calls not made for a commercial purpose, for example, calls conducting research, market surveys, political polling, or similar noncommercial activities; and

2. Nontelemarketing commercial calls: Calls made for a commercial purpose but do not include or introduce an advertisement or constitute telemarketing, meaning the calls do not contain advertising or solicit the purchase of goods or services.

Following is a guide for telemarketers to ensure compliance with the new requirements:

Before July 20, 2023

1. Understand that the new requirements only apply to calls that utilize artificial or prerecorded voice messages. The requirements do not concern calls made by live agents or text messages sent.

2. Establish written policy and procedures for maintaining a list of persons who request to not receive the relevant calls made by or on behalf of the telemarketers.[2] Specifically, the new amendments prohibit all exempted artificial or prerecorded voice calls made to residential landlines, unless the telemarketer has established procedures for maintaining the “Do Not Call” List. The telemarketer must maintain the written Do Not Call List policy and ensure that it is available on demand.

3. Train personnel on the existence and use of the Do Not Call List.

Beginning July 20, 2023

4. Know and adhere to the number of maximum call caps that the telemarketer can place. Limit noncommercial calls and nontelemarketing commercial calls using an artificial or prerecorded voice to a maximum of three (3) calls to residential lines within a consecutive 30-day period. If a call would exceed the three-call cap, then the telemarketer must obtain prior express consent before making that call. The consent may be requested from the recipient during one of the three (3) approved calls.

During the “Approved” Calls

5. Telemarketers must:
   A. Provide the following identification information to the recipient:

i. Name of the business, entity, or individual on whose behalf the call was placed;[3] and

ii. Telephone number for such business, entity, or individual that permits recipients to make Do Not Call requests during regular business hours.[4]

  B. Allow recipients the opportunity to opt-out of calls prior to terminating the call:[5]

i. If the call is answered by a live person, then:

a. Within two (2) seconds of providing the identification information specified above, provide a brief explanatory instruction on how the recipient can use the opt-out mechanism;

b. Provide an automated interactive voice and/or key-press activated opt-out mechanism;

c. Record the recipient’s number:

1. Add it to the “Do Not Call” List; and

2. “Immediately terminate the call.”

ii. If a message is left on an answering machine or a voice mail service, then:

a. Provide a toll-free number that enables the recipient to call back at a later time and connect directly to the automated, interactive voice-and/or key press-activated opt-out mechanism; and

b. Record the recipient’s number; and

1. Add it to the “Do Not Call” List.

6. Telemarketers may request express consent from the recipient during the “approved” call to exceed the limited number of exempt calls within the stated period.

After the “Approved” Calls

7. Telemarketers must honor the recorded “Do Not Call” requests made to an entity or to its affiliate entity (if the consumer would reasonably expect them to be included), within a “reasonable time” (defined as not exceeding 30-days from the date of such request). Telemarketers must honor the requests for five years from the time the request is made.[6] As best practice, we recommend that telemarketers honor the Do Not Call requests indefinitely.

8. Telemarketers must retain the Do Not Call List request records for a least five (5) years.[7] As best practice, we recommend that telemarketer retain the Do Not Call List indefinitely.

[1] As previously discussed, in December 2020, the FCC issued guidance regulating the artificial or prerecorded voice calls (also known as robocalls) made to residential phone lines, previously exempt from the Telephone Consumer Protection Act (TCPA). Specifically, the regulations set out requirements to ensure that the calls satisfy the Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act’s requirements to identify who can call, who can be called, and any call limits. The FCC’s regulations now include limitations on the number of calls that a caller can make within a specified time frame, requirements of specific opt-out mechanisms in every call for future calls, and requirements to implement Do Not Call procedures. On January 2023, the FCC announced the effective date of the new rules as six months from the final publishing date, making it July 20, 2023.

[2] Proposed 47 C.F.R. § 64.1200(d) (effective July 20, 2023).

[3] 47 C.F.R. § 64.1200(b)(1) (If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated.).

[4] Proposed 47 C.F.R. § 64.1200(b)(2) (effective July 20, 2023) (the phone number must not be a number for which charges exceed local or long-distance transmission charges and caller may state the telephone number during or after the message).

[5] Proposed 47 C.F.R. §§ 64.1200(b)(3), (d)(3) (effective July 20, 2023).

[6] Proposed 47 C.F.R. §§ 64.1200(d)(3), (5) (effective July 20, 2023).

[7] Proposed 47 C.F.R. § 64.1200(d)(6) (effective July 20, 2023).