Telemarketers Have Until October 16 to Change Their Automatic Dialing Procedures. The Stakes Are High, Are You Ready?

“…a business can only invoke the prior express consent exception for autodialed or prerecorded calls to a mobile phone or for prerecorded telemarketing calls to a residential line if the called party has physically or electronically signed an agreement that clearly authorizes calls or texts to be made to their phone number by that particular sender.” (Jeff Ifrah)

Are you ready for October 16, 2013? That’s the day the new Telephone Consumer Protection Act (TCPA) rules – which require all businesses to obtain prior consent from consumers before making automated calls to their cell phones – go into effect. Attorneys at Ballard Spahr explain:

“To satisfy the ‘prior express written consent’ requirement, the agreement must (1) be signed by the person called, (2) clearly authorize the seller to make autodialed or prerecorded telemarketing calls to such person, and (3) include the telephone number to which the signatory authorizes the telemarketing calls to be made.”

It’s a red-letter day for telemarketers and other businesses that rely on automatic telephone dialing systems. And it’s rapidly approaching…

Five takeaways:

1. You probably need new authorization for cell-phone owners currently on your calling list:

“… marketing calls require consent that is in a signed writing that results in ‘unambiguous agreement’ by the recipient to the calls, and that ‘clearly and conspicuously’ discloses the consequences of consenting, i.e., future receipt the call(s) agreed to. […] This has, in many instances, required companies to go out and requalify cell phone numbers for which only prior express consent had been obtained.” (Davis Wright Tremaine)

2. An “established business relationship” no longer implies consent:

The other significant change to the TCPA rules is the elimination of the ‘established business relationship’ exception for prerecorded telemarketing calls to residences. Previously, businesses could avoid TCPA liability for prerecorded telemarketing calls that otherwise were prohibited by claiming that they had an established business relationship with the consumer by virtue of a previous purchase or other business interactions. The new regulations have eliminated this exemption, meaning businesses are now required to obtain written consent for all prerecorded telemarketing to residential phone numbers, even those that are for previous customers.” (Jeff Ifrah)

3. Breaking the rule will be very costly:

“Violations of the TCPA and the new consent rule may expose companies to hefty damages. Under the TCPA, a consumer may seek statutory damages ranging from $500 to $1,500 for each, individual non-complying robocall or SMS message, and there is no cap on total damages.” (Patton Boggs)

4. You’re running out of time (and options):

“Being in full compliance 40 days from now is … absolutely critical, as the only alternatives are to hand-dial or otherwise avoid autodialing calls to cell phones, or to scrub cell phone numbers from call lists. Forty days never seemed shorter.” (Davis Wright Tremaine)

5. The new rule will likely lead to an increase in consumer TCPA lawsuits:

“This new, more restrictive rule likely will spawn even more consumer class actions against telemarketers, especially on top of the recent FCC ruling that a seller can be vicariously liable under the TCPA for calls made by third-party telemarketers.” (Patton Boggs)

The updates:

Read more on the Telephone Consumer Protection Act at JD Supra Law News>>