Advertising Law Blog

As a reminder, last year the FCC revised its rules for autodialed calls to completely eliminate the established business relationship (EBR) exemption for calls to landline numbers. The new regulations go into effect on October 16, 2013

The law now requires prior express written consent for all pre-recorded telemarketing calls to wireless and landline numbers. Express written consent must be obtained without requiring a consumer to give his or her consent as a condition of purchase. However, voice recordings and telephone keypress ("press one") can qualify as written consent. Non-telemarketing calls to cell phones require prior express consent, although such consent need not be in writing. 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 for telephone companies, 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 auto-dialed opt-out mechanism.

Given the impending deadline, marketers should be ensuring that proper consent is being obtained now so that they are not caught off-guard in the future.