Today the Federal Communications Commission unanimously adopted a Report and Order that imposes new restrictions on autodialed and prerecorded telemarketing calls. Although the action is designed to harmonize the FCC’s Telephone Consumer Protection Act (TCPA) rules with the Federal Trade Commission’s Telemarketing Sales Rule (TSR), it affects more entities and a greater number of calls than the TSR.
The Report and Order imposes four key new requirements:
1. Telemarketers will now be required to obtain prior express written consent before placing robocalls (although such consent can be obtained electroncially, consistent with the E-SIGN Act).
2. The "established business relationship" exception to the FCC’s existing telemarketing rules will no longer apply to telemarketing robocalls.
3. Telemarketers placing robocalls will be required to include on each call an automated, interactive opt-out mechanism so that the called party can cease further calls with a telephone key press.
4. The existing standards for the number of robocalls that may be dropped or abandoned (i.e., "dead air" calls) will be measured on a “per campaign” standard. The current rules allow telemarketers to average the number of dropped or abandoned calls over multiple campaigns.
The Robocall Report and Order does not impose any new obligations on non-telemarketing or "informational" calls, such as calls regarding flight delays and school closings. It also does not extend the new requirements to calls by or on behalf of tax-exempt non-profit organizations and calls for political purposes.
Even though the FCC’s goal in adopting the new requirements was to harmonize its rules with the FTC’s TSR, there are a few notable differences. Although the FTC’s robocall restrictions only apply to prerecorded telemarketing messages, the new FCC rules will apply to both prerecorded telemarketing messages and autodialed telemarketing calls. The scope of the FTC’s authority to regulate telemarketing activities is also more limited than the FCC’s authority. For example, unlike the FTC, the FCC has jurisdiction over banks, federal credit unions, and federal savings and loans; and "common carriers" (e.g., telephone companies, airlines), when engaged in common carrier activity. Those entities will be subject to the new FCC telemarketing rules. In addition, the FTC’s rules apply only to interstate telemarketing calls.
The decision maintains existing restrictions on the delivery of autodialed informational calls and prerecorded informational messages to wireless telephone numbers (which currently require callers to obtain prior express consent, but not prior express written consent).