NOVEMBER 2013
ADVERTISING, MARKETING
& PROMOTIONS
>> ALERT
REMINDER: PRIOR EXPRESS WRITTEN CONSENT
NOW REQUIRED FOR CERTAIN TEXT MESSAGES
AND OTHER CALLS UNDER NEW TCPA RULES
Effective October 2013, the Federal Communications Commission (FCC) revised its rules under the
Telephone Consumer Protection Act of 1991 (TCPA) to require “prior express written consent” in order to
initiate a telemarketing call or commercial text message to any wireless number using either an autodialer
or a prerecorded or artificial voice, and in order to initiate any telephone call to a residential line using a
prerecorded or artificial voice, with very limited exceptions. It also made a number of other noteworthy
changes to its TCPA rules.
CONSENT REQUIREMENT
The FCC’s new prior express written
consent requirement, consistent with
the Telemarketing Sales Rule (TSR)
adopted by the Federal Trade
Commission (FTC), provides that a
consumer’s consent to receive
telemarketing “robocalls” and other
autodialed telemarketing calls and
commercial text messages must be in
writing, signed, and must be sufficient
to show that the consumer:
1)received “clear and conspicuous
disclosure” of the consequences of
providing the requested consent,
i.e., that the consumer will receive
future calls that deliver prerecorded
messages by or on behalf of a
specific seller; and
2)having received this information,
agrees unambiguously to receive
these calls at a telephone number
the consumer designates.
THE BOTTOM LINE
The FCC has indicated that it will require strict compliance with the new rules under
the TCPA. It also is important to recognize that the TCPA itself permits private lawsuits
against telemarketers – with the potential of significant damages awards of up to
$1,500 per violation – as well as enforcement actions by state attorneys general.
Indeed, there have already been a number of class actions under the prior TCPA
consent requirements, so those are likely to grow under the new rule. Compliance,
therefore, is crucial.
Any writing or signature that is
sufficient under E-Sign (i.e., electronic
signatures and records) will also be
sufficient under the new rule.
disclosure was provided and that
unambiguous consent was obtained.
In addition, the written agreement
must disclose that there is no
requirement to sign the agreement as
a condition – directly or indirectly – of
purchasing any good or service.
While the new rule was primarily
meant to address the annoyance of
“robocalls,” perhaps most importantly
for most marketers, its reach extends
to commercial text messages – both
Short and Multimedia Messaging
Service (SMS and MMS) – sent to
mobile phones. The FCC has, on
numerous occasions, indicated that
the consent requirement encompasses
Finally, under the new rule, if any
question about the consent arises, the
seller has the burden of demonstrating
that a clear and conspicuous
RULES FOR TEXT MESSAGES
>> continues on next page
Attorney Advertising
1408
NOVEMBER 2013
ADVERTISING, MARKETING & PROMOTIONS
>> ALERT
both voice calls and text calls,
including text messaging, to wireless
phone numbers. A number of cases
confirm this interpretation. As a
practical matter, therefore, engaging
consumers in any type of text
messaging campaign has become
much more complicated.
While a simple opt-in was all that was
previously required (for example, “Text
‘coupon’ to 12345 to receive a coupon
good for 50% off your next purchase
at ABC Store and to periodically
receive information on future offers”)
to send commercial text messages to
consumers, marketers will now need
to obtain the prior express written
(and signed) consent outlined above.
Therefore, even where a consumer
responds to an off-line offer or opts-in
by sending a text, the marketer will
need to send a separate text message
including the above disclosures and
to obtain the consumer’s consent.
Furthermore, any consumer consent
obtained prior to October 16, 2013 will
not be grandfathered in, meaning that
any marketers that are relying on any
consent other than written consent (as
defined by the rule) to send a customer
text messages are likely violating the
new TCPA.
OTHER KEY CHANGES
The new rules made several other
important changes, as follows:
1)elimination of the established
business relationship exemption for
“robocalls” to residential lines –
thus, these calls now require prior
written consent, even where the
caller and called party have an
existing business relationship;
2)requirement that all prerecorded
telemarketing calls must allow
consumers to opt-out of future
prerecorded telemarketing calls
using an interactive automated
opt-out mechanism, as the FTC’s
TSR provides; and
3)limiting permissible abandoned
calls on a per-calling campaign
basis, so that the three percent
call abandonment rate must
be calculated for each calling
campaign.
The FCC said that its revised rules
are intended to “protect consumers
from unwanted autodialed or
prerecorded telemarketing calls to
wireless numbers” and from unwanted
prerecorded telemarketing “robocalls”
to residential lines.
NEW RECORDKEEPING
REQUIREMENTS
The new rules also establish
recordkeeping requirements for a large
variety of businesses, including small
businesses.
First, a seller must obtain and retain
a written agreement between itself
and the consumer showing that the
consumer agrees to receive, from
the seller, autodialed or prerecorded
telemarketing calls to a wireless
number and/or prerecorded calls
to a residential line.
In addition, the new rules obligate
telemarketers and sellers to retain
records demonstrating that they
provided the automated interactive
optout feature at the outset of a call.
The FCC said that the records should
demonstrate the telemarketer’s and
seller’s compliance with the provision
and utilization of the automated
interactive opt-out feature.
A RULE NOT CHANGED
Although the FCC revised its consent
rules to require prior written consent
for autodialed or prerecorded
telemarketing calls to wireless numbers
and prerecorded telemarketing calls
to residential lines, it did not alter
its existing consent rules for nontelemarketing, informational calls, such
as those by or on behalf of tax-exempt
non-profit organizations, calls for
political purposes, and calls for other
noncommercial purposes, including
those that deliver purely informational
messages. The FCC’s rules for these
calls continue to permit oral consent if
made to wireless consumers and other
specified recipients, and continue to
require no prior consent if made to
residential wireline consumers.
FOR MORE INFORMATION
Joseph J. Lewczak
Partner
212.468.4909
jlewczak@dglaw.com
Matthew E. Smith
Associate
212.468.4804
msmith@dglaw.com
or the D&G attorney with whom you
have regular contact.
Davis & Gilbert LLP
T: 212.468.4800
1740 Broadway, New York, NY 10019
www.dglaw.com
© 2013 Davis & Gilbert LLP