New Robocall Rules Take Effect October 16
On October 16, 2013, new rules and regulations under the Telephone Consumer Protection Act (the "TCPA"), requiring prior express written consent for autodialed telemarketing calls to cell phones and prerecorded messages will take effect. These new rules are intended to protect consumers from unwanted autodialed or prerecorded telemarketing calls, also known as "robocalls". The FCC has previously included text messages in its definition of "calls", so these new requirements will also apply to spam text messages.
With the new FCC rules advertisers must now obtain and maintain records of prior express written consent for telemarketing calls to cell phones and residential lines made by automatic dialer.
"Prior express written consent" will require a written agreement, signed by the party being called, authorizing the caller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or prerecorded message to the specific number authorized in the agreement. The express written consent may using a written signature complying with the E-Sign Act. The written agreement must include a clear and conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement as a condition of purchasing any property, goods, or services
Previously some companies believed an "established business relationship" would permit them to make robocalls to their "customers', however the rules make clear an "established business relationship" does not relieve an advertiser of the obligation to obtain prior express written consent.