Effective October 16, 2013, all sellers and telemarketers will need a consumer's written agreement to make prerecorded telemarketing calls to residential telephone lines or autodialed or prerecorded telemarketing calls to wireless numbers.

In February 2012, the Federal Communications Commission (FCC) amended its rules under the Telephone Consumer Protection Act (TCPA) to require "prior express written consent" for such telemarketing calls. Sellers and telemarketers subject to the Federal Trade Commission's telemarketing rules were already subject to a similar requirement. However, entities under the FCC's exclusive jurisdiction, such as banks, insurance companies, airlines, and common carriers (including telephone companies), were only previously required to obtain the consumer's "prior express consent," which did not need to be in writing.

In addition, the FCC's rules previously contained an "established business relationship" exception to the consent requirement for prerecorded telemarketing calls to residential telephone lines. That exception was eliminated by the 2012 amendments to the FCC's rules. The FCC provided that the written consent requirement would become effective one year after the date on which the Office of Management and Budget's (OMB) approval was published in the Federal Register. The OMB published its approval on October 16, 2012.

To satisfy the "prior express written consent" requirement, the agreement must (1) be signed by the person called, (2) clearly authorize the seller to make autodialed or prerecorded telemarketing calls to such person, and (3) include the telephone number to which the signatory authorizes the telemarketing calls to be made. It must include a clear and conspicuous disclosure informing the signatory that:

  • By signing the agreement, the signatory is authorizing the seller to make autodialed or prerecorded telemarketing calls to the signatory.

  • Signing the agreement is not required as a condition of purchasing any property, goods or services. A "signature" can include an electronic or digital form of signature that is recognized as a valid signature under applicable federal or state contract law.

Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending all manner of TCPA lawsuits, the Group has counseled a number of clients on establishing autodialing and monitoring protocols.

For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, CFS Practice Leader Jeremy T. Rosenblum at 215.864.8505 or rosenblum@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, Mercedes Kelley Tunstall at 202.661.2221 or tunstallm@ballardspahr.com, Amy S. Mushahwar at 202.661.7644 or mushahwara@ballardspahr.com, or Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com.


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