We all hate telemarketers. And despite the efforts of the FCC and the Telephone Consumer Protection Act of 1991, many of us end up having conversations exactly like this with strangers trying to talk to us about laundry detergent and time shares.
If the prior regulations didn't cramp the telemarketers' style, these should. Beginning on October 16, 2013, any commercial phone calls made via auto-dialers or prerecorded messages will have to comply with new FCC regulations, with one of their main defenses eliminated.
Telemarketing calls include those made to offer or market products or services to consumers. Informational and non-commercial calls, such as severe weather and other emergency alert calls, are not covered by the law, even if they use auto-dialers or recorded messages.
It's not just autodialed and prerecorded message calls that are covered either. Unsolicited faxes and text messages are also covered.
What's not covered? The final rule published in the Federal Register notes that "debt collection calls, airline notification calls, bank account fraud alerts, school and university notifications, research or survey calls, and wireless usage notifications," so long as they aren't for the purpose of telemarketing, won't require any consent for landlines, but will require either written or oral consent (under existing rules) for calls to cell phones.
New Rule: Prior Express Written Consent
According to the final rule, the "prior express written consent requirement applies to autodialed or prerecorded telemarketing calls to wireless numbers and prerecorded calls to residential lines only."
That means no more auto-dialed or prerecorded telemarketing calls to your cell phone, unless you sign a clear, explicit document granting a telemarketer permission to call that phone. Autodialed telemarketing calls to residential lines seem to be permissible upon oral consent under the curiously-drafted rule.
Another important note: you can't be forced to consent to telemarketing calls as part of an exchange of goods or services.
New Rule: Automated Opt-Out Mechanism At Beginning of Call
If that call makes it through, it will now begin with a message and method to opt-out of future calls, which should curb the repeat calls I keep getting from Florida. No, you don't have a way of making me money. I don't want to get rich, darn it. Stop calling!
Defense Denied: "Established Business Relationship" Exemption Eliminated
In past times, and until Wednesday, telemarketers could point to a preexisting business relationship as a defense to any claims under the TCPA. That defense will no longer be viable under the new rules. Prior relationship or not, written consent must be obtained before making commercial calls using an auto-dialer or a prerecorded message.
On the bright side (for them), if they staff a call center with old fashioned phones, dialing number-by-number, using live operators, some unsolicited telemarketing may still be possible.
Penalty is Steep
Let's say Mr. Telemarketer isn't a reader of our Legal Professionals blogs. (The best and brightest don't tend to go into telemarketing.) The TCPA provides for either actual damages or statutory damages of $500 to $1,500 per unsolicited call, fax, or text message, with the final amount determined by the court depending on whether the violation was "willful."