Robert T. Healey, Esq.

New TCPA Rules for Telemarketing Texts and Robocalls

ID-10092880With the advent of the smart phone as the primary engine of electronic communication, it is not surprising that businesses and telemarketing companies would attempt to promote their products via automated calls and text messages. The Federal Communications Commission is empowered to issue rules and regulations implementing the TCPA, and recently, it promulgated new rules pertaining to autodialed (also known as robocalls) and text messages which are sent for telemarketing purposes.  The new FCC rules hold that beginning October 16, 2013, prior express written consent will be required for all autodialed and/or pre-recorded calls/texts sent/made to cell phone and pre-recorded calls made to residential land lines for marketing purposes.  Note this excellent article by Kevin Hunt of the Hartford Courant detailing these changes:

http://www.courant.com/business/custom/consumer/hc-bottom-line-sue-robocallers-20140118,0,279263.column?page=1

What are the new TCPA Rules?

In a Report and Order approved on February 15, 2012, the FCC adopted additional protections for consumers concerning unwanted autodialed and/or robocalls.  The changes to the TCPA are as follows:

New Rule

Effective

What is the new requirement?

Prior express written consent October 16, 2013 Unambiguous written consent required before telemarketing call or text message.  Exception: calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA.
No “established business relationship” exemption October 16, 2013 Established business relationship no longer relieves advertisers of prior unambiguous written consent requirement.

What is Prior Express Written Consent?

The express written consent requirement can be satisfied electronically through email, text message, website contact forms, telephone key press, or voice recording.  Consumer consent must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls that deliver autodialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached (which should not be pre-populated by the advertiser in an online form).  Limited exceptions apply to this requirement, such as calls/texts from the consumer’s cellular carrier, debt collectors, schools, informational notices and healthcare-related calls.  If a dispute concerning consent arises, the advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive telemarketing calls to the number he/she specifically provided.

How does “no established business relationship exemption for pre-recorded telemarketing calls to residential landlines” affect consumers?

In the past, advertisers could rely on an established business relationship (such as a previous purchase) to circumvent the need to obtain a consumer’s written consent to receive telemarketing calls.  That exception to the consent requirement will no longer exist after this year.  Advertisers will have to obtain written consumer consent, outlined above, even if they previously had a business relationship with the consumer.

What are the penalties for failing to comply with the TCPA?

The TCPA provides for statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message.   In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.

The TCPA is a law which can be very helpful to consumers.  If you feel that you are receiving unwanted automated calls or texts on your cell phone from any entity which does not have express written consent from you to contact you on that number, you should contact a consumer advocate immediately to discuss your claim.

Bob Healey is a licensed attorney and principal with Healey Law, LLC, a full-service St. Louis law firm, specializing in handling cases for consumers who have been harassed or mistreated by debt collectors, banks, credit reporting agencies, automobile dealers and mortgage companies.  He also represents accident victims in personal injury claims and injured workers in workers compensation claims.  He is a member in good standing with the National Association of Consumer Advocates and the Missouri Association of Trial Attorneys. With 4 convenient locations in Chesterfield, Downtown St. Louis, North County (Bridgeton near DePaul Hospital) and South County (on Tesson Ferry across from St. Anthony’s Hospital) Bob has over 25 years of experience representing clients in the State and Federal Courts in both Missouri and Illinois.  For more information visit:  http://www.healeylawllc.com or contact Mr. Healey at bob@healeylawllc.com

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