The Federal Communications Commission (FCC or Commission), which regulates telemarketing under the Telephone Consumer Protection Act (“TCPA”), has proposed revised telemarketing rules governing prerecorded telemarketing calls — so called “robocalls” — to harmonize its rules with the Federal Trade Commission’s (FTC) recently amended Telemarketing Sales Rule, adopted pursuant to the Telemarketing Consumer Fraud and Abuse Prevention Act. While most entities that use robocalls are regulated by both the FTC and the FCC, certain entities (such as common carriers, banks, and insurance companies) fall only under the FCC’s jurisdiction and have been subject to less restrictive standards since the FTC amended its Rule in 2008. The FCC’s proposed changes would not affect robocalls by or on behalf of tax-exempt non-profit organizations; calls for political purposes or for other noncommercial purposes; and calls initiated for emergency purposes. Comments are due 60 days and reply comments are due 90 days after the proposed rules are published in the Federal Register, which has not occurred as of this blog. Comments may be filed electronically using the Electronic Comment Filing System (ECFS).
Proposed Changes to FCC Rules: The FCC has proposed five amendments to conform its rules with the FTC’s more restrictive rules.
(1) Written Consent Requirement. The FCC’s rules prohibit the delivery of prerecorded messages absent “prior express consent,” which may be either oral or written if the subscriber’s number is not listed on the national do-not-call registry and must be in writing if the subscriber’s number is on the do-not-call registry. The amended FTC Telemarketing Sales Rule requires that prior express consent to receive robocalls be in writing. The FCC has proposed requiring that telemarketers obtain consumers’ prior express written consent for prerecorded calls to residential lines as well as emergency lines, health care facilities, and cellular services.
(2) Eliminating the Exemption for Prerecorded Telemarketing Calls to Established Business Relationship Customers. The FCC’s rules allow for robocalls to customers with whom the caller has an established business relationship. Conversely, the amended FTC’s Telemarketing Sales Rule explicitly states that an established business relationship will not authorize placing robocalls. The FCC has proposed requiring express written consent to receive robocalls, even where there is an established business relationship.
(3) Exemption for Healthcare-Related Calls Subject to HIPAA. The FCC rules currently do not exempt from the ban on residential robocalls healthcare-related robocalls that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The FTC’s Telemarketing Sales Rule contains such an exemption for healthcare-related calls. The FTC reasoned that elderly and ill patients most in need of healthcare-related prerecorded messages may be unable or unlikely to provide their express written consent to receive them and there is little risk that such an exemption would lead to abusive practices by healthcare-related entities. Therefore, the FCC has proposed exempting certain healthcare-related prerecorded calls from the general prohibition on robocalls to residential lines.
(4) Opt-Out Mechanism. The FCC and FTC both require an opt-out mechanism for robocalls. However, the FTC requires telemarketers to provide immediate opt-out mechanisms. The FCC proposes conforming its rules to the FTC’s by requiring that robocalls include an automated, interactive opt-out mechanism.
(5) Abandoned Calls. Both the FCC and the FTC impose a three percent limit on the percentage of live telemarketing calls that a telemarketer may abandon as a result of using automated dialing systems that automatically dial consumers’ phone numbers in a way that predicts the time it will take for a consumer to answer the phone (“predictive dialers”). However, the FCC and the FTC measure the call abandonment rate differently, with the FTC measuring over a 30-day period for the duration of a single calling campaign and the FCC measuring over the same 30-day period, but with no “per campaign” limitation. The FCC has proposed to adopt a “per campaign” limitation to conform its methodology to the FTC’s. This limitation would prevent telemarketers subject to only the FCC’s rules from engaging in the practice of computing a single abandonment rate for all campaigns conducted in a 30-day period.
For a more detailed write-up on this issue, click here.