Proposed changes to rules under the Telephone Consumer Protection Act (TCPA) that would limit the use of prerecorded calls and automatic telephone dialing systems, or “autodialers,” have resurfaced at the Federal Communications Commission. If adopted, the proposed rules would require debt collectors and others not engaged in sales or telemarketing who use these methods for calls made to wireless numbers to obtain a prior written agreement evidencing the consumer’s consent to such calls.

Initially issued on January 20, 2010, the proposed rulemaking has been placed on the agenda for the FCC’s next open meeting scheduled for February 15, 2012.

Current FCC regulations allow autodialed or prerecorded non-sales calls to be made to wireless numbers with the consumer’s “prior express consent.” In the case of collection calls, the FCC had ruled that autodialed or prerecorded calls to wireless numbers were made with the consumer’s “prior express consent” if the consumer had given the cell phone number to the creditor for use in normal business communications, such as in a credit application.

But under the proposed rule changes, the FCC would no longer allow autodialed or prerecorded collection calls or other non-sales calls to be made to wireless numbers unless the caller had first obtained a written agreement from the consumer that includes a clear and conspicuous disclosure that the purpose of the agreement is to authorize autodialed or prerecorded calls. Because the proposal does not allow the agreement to be required as a condition of the underlying transaction and also requires the agreement to include the cell phone number to which calls can be placed and the consumer’s signature, companies will be unable to use boilerplate provisions in the transaction documents authorizing prerecorded or autodialed calls to any cell phone number the consumer may provide.

The FCC’s proposal would track the Federal Trade Commission’s telemarketing rules more closely and place new burdens on sellers and telemarketers who are not already subject to such FTC rules. The proposal would prohibit entities under the FCC’s exclusive jurisdiction, such as common carriers (including telephone companies and airlines), banks and insurance companies, from making prerecorded telemarketing calls to residential telephone lines or wireless numbers without a written agreement from the consumer that meets the new standards. While current FTC rules require the consumer’s prior written agreement for any prerecorded telemarketing calls, FCC rules currently require a prior written agreement only where the call is made to a residential subscriber who has listed his or her number on the National Do Not Call Registry. Otherwise, “prior express consent,” which can be written or oral, is sufficient under current FCC rules.

In several other respects the FCC’s proposal mirrors the FTC’s more restrictive rules, including its requirement for all prerecorded telemarketing calls to provide an automated, interactive opt-out mechanism, and the elimination of the FCC’s current exception permitting prerecorded telemarketing calls to residential lines without the consumer’s written agreement or “prior express consent” where the caller and consumer have an established business relationship. Finally, the proposal would also make autodialed telemarketing calls to wireless numbers subject to the prior written agreement requirement.

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 throughout the country, 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 auto-dialing and monitoring protocols. 

The group also produces the CFPB Monitor, a blog that focuses exclusively on important Consumer Financial Protection Bureau developments. To subscribe, use the link provided to the right.

For more information, please contact Practice Leader Alan S. Kaplinsky, 215.864.8544 or kaplinsky@ballardspahr.com; Practice Leader Jeremy T. Rosenblum, 215.864.8505 or rosenblum@ballardspahr.com; John L. Culhane, Jr., 215.864.8535 or culhane@ballardspahr.com; Barbara S. Mishkin, 215.864.8528 or mishkinb@ballardspahr.com; or Mark J. Furletti, 215.864.8138 or furlettim@ballardspahr.com.

 


Copyright © 2012 by Ballard Spahr LLP.
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