Companies that use telemarketing campaigns must be prepared to change the „prior express consent“ requirements that will come into effect on October 16, 2013. The new rules were adopted by the Federal Communications Commission (FCC) as part of the Telephone Consumer Protection Act (TCPA). As of October 16, businesses will be required to obtain „prior express written consent“ before making a telemarketing call to a wireless number (either consumer or business) with an automated voting system or an artificial or pre-recorded voice, or before calling a private line with such a voice to transmit the message. „In addition, the FCC interprets text messages as `calls` under tcpa, which requires prior explicit written consent for both calls and texts. The FCC`s new rules are available here. Some categories of calls made to private lines still do not require prior explicit consent, including information calls outside of telemarketing and calls from political and non-profit organizations. Calls automatically recorded or recorded by mobile operators free of charge to their customers also do not require prior explicit consent. However, existing prior express consent requirements for other non-telemarketing calls to wireless numbers are maintained. In 2003, the Federal Trade Commission and the FCC jointly published rules that jointly created the National Do Not Call Registry (DNC Registry). Callers are generally prohibited from calling consumer numbers in the DNC registry for telemarketing purposes. Telemarketers must download the DNC registry at least every 31 days and target them, with some exceptions. Both exceptions apply where the appellant (a) has written consent from the consumer or (b) an established business relationship (CEE) with the consumer. The term EBR includes business relationships in which the consumer has, within the last eighteen months, made a transaction with the seller („Transaction EEC“) or inquired about the seller`s goods/services in the last three months („EBR Request“).
Federal DNC laws do not apply to business calls (with the exception of the sale of non-durable office or cleaning products). Some states may have more restrictive requirements. Calls or SMS to mobile phones that introduce advertising or that constitute telemarketing and that are sent via an ATDS require prior written consent. „Advertising“ is defined by the Code of Federal Regulations as „any material that promotes the commercial availability or quality of goods or services,“ and „telemarketing“ is defined as „the initiation of a telephone call or message to promote the purchase, rental or investment in goods, goods or services transmitted to a person.“ 47 C.F.R. § 64.1200 (f) (1), (12). The content is used to determine whether calls or texts are advertising. The promotion of TCPA only requires the introduction of the commercial availability of a service at the most fundamental level….