TCPA Changes Affecting Telemarketing
What you Need to Know:
Callers cannot avoid obtaining consumer consent for a robocall simply because they are not ‘currently’ or ‘presently’ dialing random or sequential phone numbers.”
2. A called party “may revoke consent at any time and through any reasonable means.”
The FCC states that “a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur.”
The FCC also emphasized that “regardless of the means by which a caller obtains consent, under longstanding [FCC] precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent.”
3. Consent must be specific to the type of call, and type of telephone service of the number being dialed.
4. Only “the consumer assigned the telephone number dialed and billed for the call” or “the non-subscriber customary user of a telephone number included in a family or business calling plan” may consent.
However, “providing one’s phone number evidences prior express consent to be called at that number, absent instructions to the contrary.”—I got a real problem with this part. Just because I give Google my phone number and post it on my webpage does not mean I consent for business to call and solicit me. I really hate the Google partner calls wanting to do my ads or SEO. Wonder if this counts as an expressed revocation of acceptance of solicitation calls under TCPA ???
5. “Callers are liable for robocalls to reassigned wireless numbers when the current subscriber to or customary user of the number has not consented, subject to a limited, one-call exception for cases in which the caller does not have actual or constructive knowledge of the reassignment.”
6. The FCC rejected one Petitioner’s arguments (subsequently withdrawn) that “the TCPA’s protections are limited to telemarketing calls to wireless numbers and should not require consent for non-telemarketing robocalls made with a predictive dialer.”
7. “The TCPA’s consent requirement applies to short message service text messages (“SMS” or “text message”),” as well as “internet to phone text messages,” in addition to voice calls.
8. The FCC’s 2012 “prior express written consent” rule is waived “for certain parties for a limited period of time to allow them to obtain updated consent.”
9. “'[O]n demand’ text messages sent in response to a consumer request are not subject to TCPA liability.”
10. “[C]ertain free, pro-consumer financial- and healthcare-related messages” are exempt “from the consumer-consent requirement, subject to strict conditions and limitations to protect consumer privacy.”
The FCC imposed the following restrictions and requirements regarding these messages:
“voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the customer of the financial institution;
voice calls and text messages must state the name and contact information of the financial institution (for voice calls, these disclosures must be made at the beginning of the call);
voice calls and text messages are strictly limited to the [specified purposes] and must not include any telemarketing, cross-marketing, solicitation, debt collection, or advertising content;
voice calls and text messages must be concise, generally one minute or less in length for voice calls (unless more time is needed to obtain customer responses or answer customer questions) and 160 characters or less in length for text messages;
a financial institution may initiate no more than three messages (whether by voice call or text message) per event over a three-day period for an affected account;
a financial institution must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or keypress-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and
a financial institution must honor opt-out requests immediately.”
The FCC also adopted the following conditions for each exempted message made by or on behalf of a healthcare provider:
voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;
voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call);
voice calls and text messages are strictly limited to [certain specific healthcare-related purposes]; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules;
voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
a healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider;
a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or keypress-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying ‘STOP,’ which will be the exclusive means by which consumers may opt out of such messages; and
a healthcare provider must honor the opt-out requests immediately.”
https://www.fcc.gov/document/tcpa-omnibus-declaratory-ruling-and-order-order
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