[co-author: Jared Bauman, Law Clerk]
The Federal Communications Commission (FCC) recently announced that new rules for non-telemarketing artificial or prerecorded voice calls (i.e., “robocalls”) go into effect on July 20, 2023. The new rules limit the number of robocalls that may be placed to a particular landline phone number to three during any consecutive 30-day period unless the caller obtains prior consent to place more, and impose stricter requirements for obtaining consent. As a result, virtually all nonprofit and political organizations will need to make adjustments to their robocalling programs before July 20.
What Is Changing?
Three Calls Per Thirty Days or Obtain Consent. Previously, nonprofit and political organizations did not need prior consent to place a non-commercial, informational (i.e., not telemarketing) robocall to a residential landline telephone number. Under the new rules, robocallers who do not have prior consent are limited to three calls to a landline phone number in any thirty-day period. To place more than three calls, the robocaller will need to obtain the call recipient’s oral or written express consent, either in one of the three permissible robocalls or by using a live caller. Consent is not required for live operator calls, and robocalls are still prohibited to wireless phones unless consent has been obtained before the first robocall.
Automated Opt-Out. Next, in addition to clearly identifying the individual or entity responsible for the call at the outset, robocalls must now offer an automated opt-out option within two seconds of identifying the caller. As a practical matter, this means the call recipient must be given the chance to opt-out before the caller delivers the substantive message. The opt-out option may take the form of an interactive voice or key press mechanism that is accompanied by brief instructions on how to use the system. When a person uses this mechanism to opt-out, the system must automatically record the person’s phone number to the caller’s do-not-call list and immediately end the call. If a message is left on a call recipient’s answering machine, the message must include a phone number that allows the recipient to connect to the opt-out system. Opt-out requests must be honored within 30 days and for five years after the request is made.
Phone Number Provided Must Connect to Opt-Out Option. Robocalls are already required to include a phone number through which the organization may be reached. The FCC’s new rules require that this phone number must allow people to make do-not-call requests during regular business hours. If the call goes unanswered, answering machine or voicemail messages must include a toll-free number that connects the recipient to the voice or key press opt-out mechanism described above.
Written Policy and Training. Nonprofit and political organizations that make robocalls must have a written policy for maintaining a do-not-call list that is available on demand. Organizations must also provide training opportunities about these rules to personnel who are involved with robocall operations.
The FCC believes these new requirements will not unduly burden non-commercial callers and notes that most of these requirements have applied to commercial telemarketers for years. The new rules are part of the FCC’s increased regulation of robocalls following the adoption of the Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the “TRACED Act”) in 2019.