When Does a Consumer who Requests to be Called Expressly Consent to Those Calls

I can’t tell you the number of times a client of mine has been offered leads of consumers who supposedly have requested or opted in telephone calls, for limited or unlimited purposes.  Invariably, calls to these lists have generated complaints to Attorneys General that the calls violated the national or state “do-not-call” list and the consumers never opted in, or remembered opting in.

Because it is standard operating procedure for an Attorney General to assume the consumer is correct, and make the caller rebut any complaint, my client is then faced with the situation of obtaining proof of the opt in from the lead company.

The results have not been pleasant.

       I.            Federal Law

Both the Federal Communications Commission (“FCC”) and the Federal Trade Commission (“FTC”) have been very specific about what constitutes “prior express consent” for sales calls under the Telemarketing Sales Rule (“TSR”) and the Telephone Consumer Protection Act (“TCPA”).  The “consent” must contain certain elements, and if the form used by the lead generator does not contain those elements, the resulting information is not, legally, “prior express consent.”

The required elements are:

·       Signature of the person called (can be in electronic or digital form),

·       Telephone number to which the signature authorizes calls,

·      Clear and conspicuous disclosure informing person that agreement authorizes seller to call using an ATDS or prerecorded voice, and

·       Statement that person not required to sign agreement as a condition of purchase.

47 C.F.R. § 64.1200(f)(8).

For third party lead generators:

·       Before consumer gives telephone number, clear and conspicuous disclosure that consumer may receive telemarketing calls from third parties,

·       Maximum number of entities which may call, and

·       The identities of companies who may call if known.

Informal Advisory Opinion Concerning Applicability of 2008 TSR Amendments, FTC Informal Op. (July 19, 2006), http://www.ftc.gov/bcp/telemarketing/HudsonCookAdvisoryOp.pdf.

Your contract with the lead seller should require compliance with these parameters and require that the seller provide proof of same for a given lead within a very short period of time (e.g. 48 hours) upon demand.  You should test the vendor’s compliance with this contract provision prior to any attorney general or governmental inquiry.

    II.            State Law

State law can vary.  Usually states use the same or less restrictive parameters than the federal ones above, but this is not true in every state.

Some states say that express consent expires after a certain period of time, e.g. Illinois, and another, North Carolina, requires that the express consent be independent from any other document.

You and your counsel should review these state differences and ensure the vendor complies with those as well.

 III.            Conclusion

You do not have to review every website or form a lead generator uses to create leads. You can rely on their representation of compliance with applicable law in a contract.  However, those contractual obligations should be explicit and you should test your business partners’ compliance with those prior to any government inquiry or litigation.