Telemarketers Take Note: TCPA “Prior Consent” Rules Go Into Effect Today

As of today, October 16, 2013, telemarketers and other businesses that place pre-recorded calls to residential phones or cell numbers will have to obtain prior written consent from owners before placing a single call.

Failure to do so could be costly, write Gerald Ferguson and Theodore Kobus at BakerHostetler:

“Consumers receiving calls in violation of the TCPA may sue for statutory damages ranging from $500.00 to $1,500.00 per unsolicited call or message. The amount of statutory damages awarded may depend on the extent to which a marketer ‘willfully’ or ‘knowingly’ violated the TCPA. The fact that telemarketing campaigns often involve thousands, or even millions, of calls or text messages has made the TCPA a favorite statute of plaintiff class action attorneys.”

For your reference, a roundup of recent legal advisories on the FCC’s revised Telephone Consumer Protection Act regulations:

New TCPA Rules Take Effect for Telemarketing Calls (Sutherland Asbill & Brennan LLP):

“For purposes of the new rule, the term ‘prior express written consent’ means an agreement in writing, with a ‘signature’ that ‘clearly authorizes’ the seller to make telemarketing calls or texts using an autodialer or prerecorded voice. The agreement must contain the specific telephone number or numbers to which calls can be made, and the person giving consent cannot be required to give consent as a condition of purchase.” Read on>>

Important Changes to the FCC’s Telephone Consumer Protection Act Rules Take Effect on October 16, 2013 (Wilson Sonsini Goodrich & Rosati):

“[S]ellers who engage in telemarketing bear the burden of demonstrating that they have obtained proper prior express written consent from a called party. Because the statute of limitations for bringing federal TCPA claims is four years, retaining records of a called party’s consent for at least that long may be an important way for sellers and telemarketers to protect themselves from such claims.” Read on>>

Are You Ready For The New TCPA Regulations Regarding Text/SMS Marketing That Go Into Effect On October 16, 2013? (Perkins Coie):

“The consent must be a ‘signed’ writing but the term ‘signed’ includes an electronic or digital form of signature to the extent such form of signature is recognized as a valid signature under applicable federal or state contract laws.  Written agreements obtained in compliance with the E-Sign Act satisfy the requirements, such as agreements obtained via email, website form, text message, telephone keypress or voice recording.” Read on>>

The New Written Consent Requirements for Telemarketing Calls under the TCPA Go into Effect on October 16, 2013—Are You Ready? (Loeb & Loeb LLP):

“Telemarketing calls include those that offer, market, or promote products or services to consumers or that have a telemarketing purpose. If a call is conducted to induce the purchase of goods or services, it is a telemarketing call. As a general rule, calls that are not purely informational in purpose and message constitute telemarketing.” Read on>>

FCC Changes to the Telephone Consumer Protection Act Take Effect October 16 (Fenwick & West LLP):

“Because there is no ‘grand-fathering’ provision in the new FCC rules for past practices, after October 16 companies will need prior express written consent to send texts or make prerecorded calls even to existing users or subscribers. That may require companies to “refresh” consent from their existing users.” Read on>>

Are You Ready for the New Telephone and Text Marketing Rules? (BakerHostetler):

“FCC regulations define an ‘autodialed’ call as any call made from a telephone dialing system that can produce or store and call telephone numbers using a random or sequential number generator. Importantly, these regulations may treat a call as ‘autodialed,’ even when it is manually dialed, if it is made from a system that has the capacity to ‘autodial.’ If you are using call center software as part of your telemarketing operations, you may be using an autodialer within the FCC’s definition.” Read on>>

New TCPA Rules Effective October 16, 2013 (Duane Morris LLP):

“Previously, the regulations provided for an exception to the prior consent requirement for prerecorded telemarketing calls made to consumers with whom the caller had a prior business relationship. The new regulations eliminate that exception. Additionally, there is no existing business relationship exception provided for calls made using an automatic telephone dialing systems.” Read on>>

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

Find additional updates on the Telephone Consumer Protection Act at JD Supra Law News>>