Frankfurt Kurnit Klein & Selz

February 27th, 2012

FCC Imposes Strict New Rules for Robocalls

The Federal Communications Commission ("FCC") has issued an Order requiring telemarketers to obtain prior written consent from consumers before distributing prerecorded telemarketing messages via autodialer ("robocalls") to cell phones (voice or text) or residential landlines. With the exceptions noted below, the Order applies regardless of whether there is an existing business relationship between the marketer and the consumer. The rule requiring prior written consent will go into effect 12 months after the date of formal publication of the approved rule in the Federal Register.

The Federal Trade Commission and the FCC both have jurisdiction over telemarketing. The FTC is responsible for enforcing  the "Telemarketing Sales Rule"; the FCC derives its regulatory authority from the "Telephone Consumer Protection Act". Importantly, the FCC has jurisdiction over all telemarketers, while the FTC’s jurisdiction does not extend to banks, airlines or insurance companies, or to intrastate calls.

The FTC had already required marketers  to obtain signed written consent from consumers before sending robocalls. But the FCC's rules allowed those telemarketers not subject to the FTC's jurisdiction to avoid obtaining written consent if they had  an established business relationship ("EBR") with the consumer. The new FCC order will eliminate the EBR exemption, requiring all telemarketers to obtain prior written consent for robocalls.  (Exception: marketers distributing certain “purely informational” calls to landlines -- such as calls announcing school closings or flight information, or calls made by non-profits and political organizations -- are not subject to this requirement.)

The  new rules will also require telemarketers to implement an automated interactive opt-out mechanism for telemarketing robocalls, and impose other requirements for such calls. While the rule requiring prior written consent goes into effect 12 months after formal publication in the Federal Register, other rules, such as the opt-out requirement, go into effect on a different schedule. The Order also addresses the form of written agreement marketers  must obtain. For example, written agreements obtained in compliance with the E-SIGN Act, including agreements obtained via email, website form, text, telephone keypass or voice recording, may satisfy the requirements of the rule -- so long as the consumer’s consent is clear and the marketer did not condition consent on the purchase of goods or services.

We note that, soon after  release of the Order, the FTC announced an action against the operator of a massive robocalling initiative.  The new FCC rules and the recent FTC action underscore federal regulators’ ever-increasing focus on consumer privacy and their interest in affording consumers greater control over how marketing messages are delivered to them.

Read FTC's "Telemarketing Sales Rule."
Read FCC's "Telephone Consumer Protection Act."
Read FTC's full press release on robocalling- FTC Takes Action to Stop Massive Robocalling Operations

If you have any questions about the laws governing robocalls or other advertising and marketing issues, please contact Terri Seligman at tseligman@fkks.com or (212) 826 5580, or any other member of Frankfurt Kurnit’s Advertising Group.

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