Yesterday the Federal Communications Commission (“FCC”) updated its rules respecting the Telephone Consumer Protection Act (TCPA), the law that gave us the rules which led to the the “Do Not Call” registry. The FCC’s rules have clarified that it is entirely legal for telephone companies to block automated calling and texting services–commonly referred to as “robocalling” and “robotexting”–if requested by customers. And those customers hate robocalls and robotexts; the FCC received more than 214,000 complaints about those types of calls and messages last year alone.
Significantly, and for the very first time, the FCC has concluded that texts are the same as telephone calls under the law. This means that a request to block calls to a telephone number now includes both voice calls and text messages sent to that same number. Moreover, the FCC has made it easier for consumers to withdraw their consent to telemarketer’s pre-recorded calls. Finally, and perhaps most importantly, marketers will get only one chance to call a re-assigned number before penalties kick in. And, penalties for violations of the new rules are higher overall.
The only exceptions to the consent rules for pre-recorded calls and texts are (1) medication refill reminders from healthcare providers and (2) fraud alerts from financial institutions. That’s it. And, even then, consumers may opt out of those notices as well. Given the very few number of exceptions, the two Republican members of the Commission voted against the new rules.
Bottom Line: Given the high number of complaints, the FCC (and consumer-side lawyers) will be watching for compliance with the new rules. Don’t let yourself be the test case. The new rules mean that, if you or your franchisees are running a promotion using automated and prerecorded calls or texts, you must ensure that you have the actual consent of the persons who own the telephone numbers you are targeting. If you are hiring a third-party to run the promotion, make sure that the contract requires the provider to have actual consent, too. And place the liability for costs of noncompliance on the provider as well.