Summary of FCC Changes in Express Consent Standards to Call Cell Phones Effective October 16, 2013

Summary

The FCC has changed the standard of “express consent” required for predictive-dialed calls to cell phones or other number for which the called party is charged for the call. While “express consent” has always been required for such calls, after October 15, 2013, telemarketing calls to cell phones will only be allowed with express written signed consent.

Article

To comply with this rule, you need to determine if the call is telemarketing and the source of the numbers called. If you intend to place telemarketing calls to consumers or businesses, you likely should review how you obtain those numbers, and revise your methods to obtain written, signed express consent to call prior to the October change date.

Discussion

On February 15, 2012, the FCC issued an order changing the express consent standard required for commercial entities to send prerecorded or text solicitations or predictive-dialed calls to cell phones.  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 27 FCC Rcd 1830 (2012) available at
hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-21A1.pdf.

Effective October 16, 2013, calls or texts to cell phones which introduce an advertisement, or constitute telemarketing, sent using automated telephone dialing systems (“ATDS”) will be allowed only with the prior express written signed consent of the recipient.  Marketing calls include live or prerecorded calls placed with a predictive dialer and text messages to consumers and businesses.  Id. at ¶ 25.  That is, after October 15, 2013, you and your clients will not be able to place outbound telephone calls to consumers’ cell phone numbers unless those consumers have expressly consented, in writing with a signature, to allow the calls or the call is placed with equipment which is not an ATDS.

The same restriction will apply to all prerecorded messages (to cell phones or landlines) for marketing purposes which will be allowed only with the prior express written signed consent of the recipient, and must contain a keypress “opt out” disclosure.  Id. at ¶ 20.  The FTC already has a similar rule with regard to prerecorded messages.

Note that “written” and “signed” are legal terms defined differently than the common dictionary definition, and that you can get written signed consent electronically or on the telephone if you comply with the federal E-SIGN law regarding how you obtain the consent.  Id. at ¶ 32.

The FCC’s announcement and the modified TCPA regulations are attached hereto as Exhibits A and B respectively.

The TCPA prohibits any person from making any call using an ATDS or prerecorded message to any telephone number assigned to a cellular telephone service or other service for which the called party is charged for the call.  47 U.S.C. § 227(b)(1)(iii).

The term “automatic telephone dialing system” is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.”  Id. at (a)(1).

The term “advertisement” is defined as “any material advertising the commercial availability or quality of any property, goods, or services.”  47 C.F.R. § 64.1200(f)(1).

The term “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”  Id. at (f)(12).

The FCC has ruled that predictive dialers are automatic telephone dialing systems.  68 Fed. Reg. 44144, 44161 (July 25, 2003).  The FCC found that the basic function of an ATDS is “the capacity to dial numbers without human intervention.”  Id.

Calls with the prior express consent of the recipient are exempt.  47 U.S.C. § 227(b)(1)(A).

In 1992, the FCC ruled that, for this purpose, “persons who knowingly release their phone numbers have, in effect, given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, 7 FCC Rcd 8752, ¶ 31 (1992).

While the new rule changes the standard for prior express consent for marketing calls to cell phones, the rule leaves unchanged the FCC’s restrictions on prerecorded messages by or on behalf of nonprofits, for political purposes and non-telemarketing or advertising calls or texts, e.g. debt collection.  27 FCC Rcd 1830, at ¶ 3.  The rule specifically provides that non-telemarketing or advertising (i.e. political, nonprofit or information only) prerecorded or text messages to cell phone lines are permitted with oral or written express consent.  Id. at ¶ 28.

Capturing a telephone number using caller ID or similar technology, alone, or obtaining it from a third party does not constitute “express consent.”  Id. at ¶ 31.

This restriction, further, applies to any system with the capacity to operate as an ATDS or with a prerecorded message.  See e.g. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir 2009), Griffith v. Consumer Portfolio Services, 2011 U.S. Dist LEXIS 91231 (N.D. Ill. Aug. 2011), and Dobbins v. Wells Fargo Auto Finance, Inc., 2011 U.S. Dist LEXIS 63856, *13 (N.D. Ill. June 2011).  These cases discuss the definition of ATDS found in the TCPA (quoted above), which says an ATDS has the “capacity” to act without human intervention, regardless of whether the call in question was placed with human intervention or not.  Temporarily disabling the capacity (e.g. “preview dialing”) may not be a sufficient defense if you call cell phones without prior express consent.  If you intend to do so, please ensure you use equipment which does not have the capacity to act as an ATDS or predictive dialer, and cannot regain that capacity absent hardware or programming modification.

State law can vary, and some states ban telemarketing calls to cell phones even if the consumer provided the telephone number to the caller.  This paper concerns only the specific restrictions applicable to calls to cell phones.  Other rules generally applicable to calls to landlines and cell phones apply, including but not limited to the national “do-not-call” list, state lists, and your internal “do-not-call” lists.

You should review how you obtain consumer numbers to be called, the types of calls you intend to place to those numbers, and revise your methods to obtain numbers if you intend to place telemarketing calls or texts to consumers’ cell numbers.

Notes

On June 17, 2013, a United States District Court in Maryland ruled that this restriction applied to a VoIP number held by a plaintiff who was charged per call by his VoIP provider despite the fact that the court agreed that it would be difficult to determine whether a called number is attached to VoIP service or normal landline service. 2013 U.S. Dist. LEXIS 84841, *13 (D. Md. June 17, 2013).

References

For more information, read Express Written Consent Language