The Telephone Consumer Protection Act of 1991 (TCPA) and the rules and regulations are now more far-reaching than ever.

This past July, the FCC issued a new Declaratory Ruling in response to 21 petitions filed seeking clarification of their 2012 prior-express-written-consent rule. The 2015 FCC Order now clarifies the prior-express-written-consent requirements apply to each call and telemarketers may not rely on written consent obtained before the current rule took effect if that consent does not comply with the current rule.

To be compliant with the new TCPA Order:

1. Telemarketing calls to residential phone lines using an artificial voice or pre-recorded message and telemarketing calls to mobile phones using an ATDS, pre-recorded message and/or artificial voice must comply with the prior written express consent rules by or before October 8, 2015.

2. Written consent can be obtained in compliance with the E-Sign Act, including email, website form, text message, or telephone keypress or through purchase agreements, business response cards, credit or loan applications, or website log-ins;

3. Express written consent must include a “clear and conspicuous disclosure” that
   (a) the telemarketing calls (or texts) may be made using an ATDS or an artificial or prerecorded voice;
   (b) that providing consent is not a condition to making a purchase.

4. Maintain consent records for 4 years.
   Maintaining consent is critical as the 2015 FCC Order espoused broad-sweeping consent revocation rules putting the onus almost entirely on the caller to prove it obtained consent in accordance with the rules and that no revocation occurred. Revocation does not need to be in writing but may be made by “any reasonable means” and will be judged based upon a “totality of the circumstances.”

Why were the requirements changed?

Generally, the TCPA restricts telemarketing calls to mobile phones using an artificial or pre-recorded voice and/or that are initiated using an automatic telephone dialing system (ATDS or Autodialer) (the “robocall rule”). Telemarketing calls include those that offer or market products or services to consumers or have a telemarketing purpose (i.e. induce consumers to purchase goods or services now or in the future). Prior to 2013, telemarketers were allowed to call residential lines where an established business relationship existed and could call mobile phones with prior consent.

In 2012, the FCC passed a prior-express-written-consent rule that became effective October 16, 2013 (the 2012 FCC Order). In addition to requiring prior express written consent, the 2012 FCC Order required the caller or sender of a text message must clearly and conspicuously disclose to consumers that “telemarketing will be done with auto-dialer equipment and that consent is not a condition of purchase.”

Following the 2012 FCC Order, there was confusion as to whether companies needed to go back to consumers who had opted-in using the old rule (no prior express written consent) and to obtain prior express written consent containing the disclosures.

Petitioners were granted a retroactive waiver back to October 16, 2013 (the effective date of the 2012 FCC Order) and were ordered to come into full compliance within 90 days after release of this recent Declaratory Ruling. While the waiver was not officially extended to non-petitioner telemarketers, certainly compliance with the new restrictions within the 90-day grace period is advisable for all telemarketers. The deadline is October 8, 2015.

If companies miss the deadline:

Violations of the TCPA carry strict liability of $500 per violation, which may, at the discretion of the Court, be trebled to $1,500 per call. If you have any questions about these changes, please contact your Dinsmore attorney.