February 27, 2012

Tougher Restrictions on Telemarketing Calls

Arnold & Porter Advisory

The Federal Communications Commission is changing its rules for telemarketing calls and messages under the Telephone Consumer Protection Act (TCPA), which governs the use of prerecorded calls or calls placed with an automated telephone dialing system.

The FCC’s Order changes its rules to align with the Telemarketing Sales Rule of the Federal Trade Commission. Thus, companies already in compliance with the FTC's more stringent rules will not need to change their practices to comply with this Order. However, the FTC's rules do not apply to banks, credit unions, savings and loans, insurance companies, airlines or common carriers. The FCC's rules do, so those entities need to address the additional restrictions.

Under the new rules:

  1. the consent required to make a prerecorded or autodialed telemarketing call must now be in writing or may comply with the E-Sign Act, which provides that a signature "may not be denied legal effect, validity, or enforceability solely because it is in electronic form";
  2. the established business relationship exemption to the consent requirement is being eliminated;
  3. prerecorded messages must have an automated opt out mechanism available during the call;
  4. the abandoned call limit must be measured on a per-calling-campaign basis, rather than just a 30-day period; and
  5. prerecorded heath care related calls to residential lines governed by the Health Insurance Portability and Accountability Act (HIPAA) are exempted from the consent, identification, time of day, opt-out and abandoned call requirements.

For details and effective dates of the new rules, click here.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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