The Federal Communications Commission recently approved a Report and Order that makes a number of important changes to its rules promulgated pursuant to the Telephone Consumer Protection Act. This document is designed to explain the most important changes:

PREDICTIVE DIALER/PRERECORDED CALLS TO CELL PHONES

The first issue involves the FCC's new approach to predictive dialer and prerecorded calls to cell phones. The "old" rule prohibited delivering "any" such call to a cell phone unless you had prior express consent. The "new" rule divides such calls to cell phones into two categories: 1) predictive dialer/prerecorded calls to cell phones that constitute telemarketing; and 2) all other predictive dialer/prerecorded calls to cell phones.

Let's take a look at category 1, predictive dialer/prerecorded calls to a cell phone that constitute telemarketing. The FCC divides THESE calls into three subcategories:

• Calls that constitute telemarketing that are made by or on behalf of a tax-exempt non-profit organization: for these, prior express consent only (i.e., no writing) is sufficient;
• Calls that constitute telemarketing that deliver a health care message from a "covered entity" (as defined in HIPAA): well, it's clear that the FCC exempts prerecorded calls to cell phones from ANY consent requirements, but it's not clear whether predictive dialer HIPAA calls are similarly exempted entirely, or if they fall within Category 2 (see below). (For anyone that has questions on HIPAA calls, feel free to call me.)
• Calls that constitute telemarketing generally: prior express WRITTEN consent is required. This is a significant change, in that telemarketers who relied upon inquiries (either oral or via a website) to make follow-up telemarketing calls with a predictive dialer will no longer be able to do so. To make such follow-up calls moving forward (but see the "Implementation" section below, there's a 12 month period before this rule takes effect), telemarketers will have to get express written consent, which means having a checkbox on a website with language to the effect of "By checking this box, I am signing this form and giving permission to ABC Company to contact me at the number provided." (To meet e-Sign requirements in the oral context requires advice from counsel. In fact, implementing ALL of these updates requires advice of counsel!)

Category 2 is a "catch-all" - all predictive dialer/prerecorded calls to cell phones OTHER than the calls identified above require "express consent" only. The FCC states that prior express WRITTEN consent is not required for purely "informational" and/or "non-telemarketing" calls, and includes in this category such calls as research or survey messages, non-profit fundraising messages, and informational calls by school boards, political candidates, airline notification services, bank account fraud services, and debt collectors. (And note that with regard to debt collectors, the FCC has ruled that predictive dialer/prerecorded calls to wireless numbers "that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the 'prior express consent' of the called party.")

PRERECORDED CALLS TO RESIDENTIAL LINES

The "old" rule (that telemarketers care most about) is that you have to get prior express consent if you want to deliver a prerecorded telemarketing call to a residential line, UNLESS you have an established business relationship with the person you're calling. The FTC removed this exemption back in August of 2008 and also required consent in writing for such calls, and now, three and a half years later, the FCC is following suit.

If you're an entity that is NOT regulated by the FTC, but you ARE regulated by the FCC, you may no longer rely upon an EBR to deliver a prerecorded telemarketing message to a residential line. You must obtain express WRITTEN consent to make any such call. BUT - the FCC goes to great lengths to explain that this ONLY applies to "telemarketing" calls, and NOT informational and/or non-telemarketing calls. (See discussion above). (This rule also does not apply to health care messages under HIPAA.)

ABANDONED CALL CHANGES

I didn't think they had it in them, but the FCC has (drum roll, please) conformed its abandonment rate measurement rules for telemarketing calls to the FTC's rules promulgated in 2008! 3% abandonment rate? Check. Measure abandonment rate for each calling campaign? Check. Measure abandonment rate every 30 days, successively? Check. What telemarketers lose in the more broadly worded FCC "old" rules, they gain in consistency between the two rules. (Note that the FCC still requires the additional disclosure that the call was for "telemarketing purposes" along with name and telephone number of the seller.)

AUTOMATED OPT-OUTS

The FTC rules require that, for any prerecorded telemarketing call that "could be answered in person," the seller has to disclose that the consumer can make use of either an interactive voice or keypress activated "opt-out" mechanism to assert a Do Not Call request. The FCC has followed suit in its rulemaking and required the same. So far, so good.

One wrinkle here however - the FTC has no requirement that an opt-out be provided during an abandoned call message. The new FCC rule requires, on the other hand, that an automated, interactive voice and/or key press activated opt-out mechanism be made available, with instructions, during the pre-recorded message played in the context of an abandoned call.

And one final nuance here. The FTC requires the disclosure of a toll-free number to be used for Do Not Call requests in the context of any prerecorded telemarketing call that "could be answered by an answering machine." The FTC's wording here ("could be answered") is poor, in that there's no way telemarketers can reliably figure out, in real-time, which calls could be answered by an answering machine and which could be answered in person. The FCC chose better language in its rule requiring the toll-free number disclosure, simply referring to prerecorded messages that that are in fact left on an answering machine.

IMPLEMENTATION

All timeframes below commence upon publication of the Office of Management and Budget's approval of the new FCC rules in the Federal Register. As of this time, I have no idea WHY OMB approval is required (something about the Paperwork Reduction Act) and/or WHEN this approval will be provided and/or published in the Federal Register).

Specifically, the FCC establishes:

• a twelve-month period for implementation of the requirement that prior express consent be in writing for telemarketers employing predictive dialers to call cell phones;
• a twelve-month period for phasing out the EBR exemption related to prerecorded calls to residential lines (i.e., telemarketers will have twelve months from publication of OMB approval of the FCC's written consent rules to cease utilization of the EBR relationship as evidence of consumer consent to receive prerecorded telemarketing calls);
• a 90-day implementation period for the automated, interactive opt-out mechanism for prerecorded telemarketing calls and for the abandoned call message;
• a 30-day implementation period for the revised abandoned call rule (the per campaign, successive 30 day measurement rule).

Joseph Sanscrainte

jws@sanscrainte.com