Advertising Law Blog

Companies using auto dialed pre-recorded or artificial voice calls (or robo-calls as they are more commonly known) as well make calls to wireless devices, beware. On February 15, 2012, the FCC revised its rules to completely eliminate the established business relationship exemption for pre-recorded and artificial voice calls and to require prior express written consent for all telemarketing calls to wireless numbers.

In requiring express written consent, the FCC established a twelve-month implementation period for the later requirement from its current "express consent" requirement. Express written consent must be obtained without requiring that the consumer give his or her consent as a condition of purchase. However, voice recordings and telephone keypress ("press one") can qualify as written consent. Although the FCC states the changes were made to "maximize consistency" with the FTC's Telemarketing Sales Rule and should "not increase compliance burdens for most telemarketers", there are differences. Moreover, the FCC's Order presents an opportunity for telemarketers to make sure they are in compliance with federal law.

Once these regulations take effect, only a very small number of auto-dialed calls will not require prior written consent. Informational calls, including political calls by non-profit organizations are exempt from the written requirement, and can be made with no permission to land lines. Oral permission, at a minimum, is required for calls to cell phones. The term "information calls" includes calls about school closings, airline flight delays, package deliveries, debt collection calls and bank account fraud alerts, and, again, these fall into the category where oral or written permission is required if such a call is being made to cell phone. Text messages will be treated the same as cell phone calls. In what seems to an unfair exemption, lobbyists for phone companies are happy that wireless carriers can continue to make automated calls, including sales calls, to their customers so long as their customers are not charged.

The FCC also required easier opt out methods to be adopted during the auto-dialed calls themselves. Any artificial or prerecorded message call that could be answered by a consumer in person must provide an interactive opt-out mechanism during the call that is announced at the outset of the message and remains available throughout the duration of the call. In addition, the opt-out mechanism, when invoked, must automatically add the consumer's number to the seller's do-not-call list and immediately disconnect the call. Where a call could be answered by the consumer's answering machine or voicemail service, the message must also include a toll-free number that enables the consumer to subsequently call back and connect directly to an autodialed opt-out mechanism. Telemarketers have ninety days to implement these new opt-out requirements.

The FCC also limited the permissible number of abandoned calls on a per-calling campaign basis in order to discourage what it calls "intrusive calling campaigns". It adopted the FTC's rule that autodialers must keep track of calls that have "dead air" (calls which are not answered by a sales representative within two seconds of the called person answering the call) on a per-campaign basis, and during any thirty-day period, such "abandoned" calls may not exceed three percent of the total number of calls. This ruling requires statistics may not be kept on an overall basis, but must be tracked by campaign. Compliance with this rule will be required in approximately thirty days.

Finally, it exempted from the TCPA prerecorded calls to residential lines made by health care-related entities governed by the HIPPA.