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Upcoming Webinar: The Obama FTC; Enforcement Trends and Hot Button Issues
Media Synergy Group ordered to stop 'robo calls'

I don't think it's news to anyone in the telemarketing world that as of September 1, 2009, all prerecorded telemarketing messages are prohibited unless the sender has a signed, written agreement from the recipient. The FTC's approach to pre-recorded telemarketing messages is to start by banning them ("it is a violation of this rule for any telemarketer to initiate any outbound call that delivers a prerecorded message"), and then to allow for certain limited carve-outs (abandoned call messages, express written (and signed) permission, true informational calls, and healthcare-related calls subject to HIPAA.)

For many in the industry, this is just the latest in a long line of rules and regulations that leads to the conclusion that pre-recorded calls are just not worth the trouble. For other (much more hardy) folks, the FTC's express written consent gauntlet is just another hurdle that can, and will, be overcome.

The key issue is, of course, how to get express written consent from a populace that appears to be dead-set against receiving prerecorded calls? There are two main methods for obtaining a signature today - via a paper form, or via an electronic form that takes advantage of the ESign Act of 2000 ("neither a signature, contract nor other record may be denied legal effect solely because it is in electronic form.") In either instance, the consumer must be informed exactly what is happening with regard to the outcome of signing the form - that is, the seller must disclose to the consumer that signing the form means that follow-up pre-recorded calls are going to be made. There's no way around it - consumers need to be informed that something that they may not particularly like is going to happen to them.

There are some entities out there (that I've read about in the news, of course) who apparently take delight in coming up with new and different ways of hiding this disclosure - either buried on the back of a paper form, or perhaps located in a "terms and conditions" document, available by linking away from the main page, with a pre-checked box to indicate that the consumer "agrees with the terms and conditions." The FTC has made it clear, however, that a hidden disclosure is in fact not a disclosure at all, and many companies have discovered this the hard way. For example, in a recent enforcement action (involving Westgate Resorts and its lead generator, Brandarama.com), the FTC determined that a website "disclosure" via a link to a terms and conditions document was insufficient where a pre-checked box was the only alert available to the consumer.

The FTC also took exception in the Westgate enforcement to the fact that the consumer was not required to link out to the actual terms and conditions site - which raises the possibility that a pre-checked box along with a "forced" linkage may be sufficient. However, with so much at stake, it is best to play it safe - a disclosure related to prerecorded messages must appear in the same location on the form where the consumer "signs" the form (whether on paper or electronically.) As the consumer is signing the form, he/she must be alerted to the fact that the signature constitutes the consumer's permission to the seller (and only the seller) to contact the consumer via prerecorded messages.

And one final word - when obtaining pre-recorded message permission for electronic signatures, it is best to follow the exact rules of e-Sign and ensure that consumers understand that they are in fact "signing" the form by checking the box. "Intent" is key on this point - although it is common practice across many, perhaps most, websites to rely upon a checked box, by itself with no additional disclosure, as a signature, the fact remains that e-Sign requires the form be executed by the consumer with the "intent to sign" the form. Additional language at the location of the checkbox, to the effect that the consumer understands by checking the box that they are signing the form, is therefore strongly advised.

Title: Compliance Webinar: The Obama FTC; Enforcement Trends and Hot Button Issues
Date and Time: September 17, 2009 from 2:00 PM - 3:00 PM EDT (11:00 AM - 12 noon PDT)
Register Today: https://www1.gotomeeting.com/register/516237048

Outbound calling is prohibited in Alabama, Louisiana, Mississippi, Rhode Island and Utah on Monday, September 7, 2009 in observance of Labor Day.

Media Synergy Group ordered to stop 'robo calls':
Following a complaint filed by Attorney General Roy Cooper, a Wake County (North Carolina) Superior Court Judge has ordered Richmond, Va., telemarketing company Media Synergy Group to stop all "robo calls" into North Carolina. In Cooper's complaint he has asked the court to permanently stop the company from placing such calls and to pay fines for violating the law, including the State's Do Not Call rules. Nearly 5.5 million North Carolina phone numbers are now on the Do Not Call registry. The North Carolina attorney general's office has reportedly won more than $1 million in fines by taking action against dozens of companies.