Upcoming FCC Rule Changes Regarding Express Consent to Call Cell Phones

Summary

The FCC has changed the standard of “express consent” required for predictive-dialed calls and texts to cell phones. 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.

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The FCC has changed the standard of “express consent” required for predictive-dialed calls and texts to cell phones. 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.

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.

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, 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 (electronic signature is acceptable), to allow the calls or the call is placed with equipment which is not an Automatic Telephone Dialing System (ATDS).

This same rule changed the FCC’s standards for allowed prerecorded calls, but since the new FCC rules largely match existing FTC rules on prerecorded calls, this change is not as important to businesses trying to comply.

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 without the prior express consent of that party.  47 U.S.C. § 227(b)(1)(iii).

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).

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.  Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CC Docket No. 92-90, 7 FCC Rcd 8752, ¶ 3 (1992).

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 capacityto operate as an ATDS or with a prerecorded message.  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 make these calls, 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.

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.