The Green Sheet Online Edition
July 13, 2015 • Issue 15:07:01
FCC declares Robo-geddon
In response to numerous complaints from consumers and business owners about unwanted robocalls and spam text messages, The Federal Communications Commission released new, restrictive guidelines on June 18, 2015, for automatic telephone dialing systems that use prerecorded messages and artificial voice technologies for telemarketing. The newly updated FCC ruling has the potential to significantly affect companies that use call center software, exposing them to harsh penalties and statutory damages of between $500 and $1,500 per unsolicited message.
The FCC reportedly received 23 petitions filed under the Telephone Consumer Protection Act (TCPA), a law passed in 1991 and updated in 2013 that restricts unsolicited telemarketing calls, faxes, pre-recorded calls or autodialed calls, also known as robocalls. The new ruling brings much-needed clarification of TCPA guidelines for calls to landline and wireless phones. As the regulatory body tasked with enforcing the TCPA, the commission can review complaints, impose fines against noncompliant businesses and award damages to complainants.
The TCPA ruling also applies to text messages delivered to mobile phones. Merchants, marketers and consumer brands must have consumers' written permission to deliver short message service (SMS) calls for marketing, call center or collection purposes, the FCC said.
The FCC exempted financial and healthcare institutions that initiate urgent messages to consumers, such as fraud alerts or prescription refill notifications. However, it pointedly prohibits "other types of financial or healthcare calls, such as marketing or debt collection calls." It further grants consumers the right to opt out of these permitted calls and SMS messages at their discretion.
Attorney Kristi Lemoine of the FCC's Consumer and Governmental Affairs Bureau noted that downloadable applications installed on mobile devices with autodial capability are subject to TCPA guidelines. Individuals whose phone numbers are included in a mobile phone's directory of contacts must provide written consent prior to their being contacted by an autodial application. However, companies that develop and market the app would not be blamed if the app is used for noncompliant messaging unless these companies had initiated the calls.
Interactive, retroactive opt-outs
The FCC upheld the TCPA's October 2013 mandate requiring companies to obtain "unambiguous written consent" from consumers for autodialed phone and text solicitations. Manually dialed, scripted telemarketing calls that do not use pre-recorded messages are exempt from this ruling.
New TCPA guidelines stipulate that advertisers must announce interactive opt-out mechanisms at the beginning of every call and provide a way for consumers to opt out for the duration of every call. Advertisers must also maintain updated records of "abandoned calls," averaging no more than 3 percent for each campaign over a 30-day period.
An October amendment to the original 1991 ruling explicitly refutes the practice of businesses continuing to solicit consumers based on pre-existing relationships. "Established business relationship no longer relieves advertisers of prior unambiguous written consent requirement," the FCC stated.
Additionally, consumers who had previously opted in to receiving marketing communications from companies, including autodialed phone and text messages, can now change their minds by revoking "prior express consent," thus rendering former opt-in offers to be noncompliant with TCPA regulations and subject to penalties.
Expanded consumer resources
The Do-Not-Call Registry has been left largely intact, providing an additional resource that consumers can use to restrict unwanted telemarketing calls. The FCC noted its intention "to build on the Registry's effectiveness by closing loopholes and ensuring that consumers are fully protected from unwanted calls, including those not covered by the Registry."
TCPA guidance holds that consumer opt-ins and express consent do not apply to reassigned numbers, making it necessary for callers to continuously update their customer databases. The FCC recognizes that sometimes despite best efforts and due diligence a company may inadvertently autodial a reassigned number. The Commission provides an exemption for the first call to a reassigned number, giving the company the opportunity to remove the number from its active subscriber database. Subsequent calls to the reassigned number, in the event that the new subscriber has not consented to receive marketing calls, could result in fines and penalties.
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