Written by Ernie Cooper

Companies that engage in telemarketing – either on their own or by contracting with a third-party telemarketing provider – should remember that new Federal Communications Commission (FCC) telemarketing rules go into effect October 16, 2013, requiring companies to obtain prior express written consent from consumers before calling them with prerecorded telemarketing “robocalls” or before using an autodialer to call their wireless numbers with telemarketing messages.  The new rules apply to sales and advertising calls to both existing customers and potential customers and apply to text messages, as well as voice calls.

The new rules, adopted by the FCC in February 2012 but delayed for Office of Management and Budget (OMB) approval and to allow an implementation period, require callers to obtain prior express written consent from the called party before placing an autodialed or prerecorded telemarketing call to a wireless phone number or before making a prerecorded telemarketing call to a residential phone number.  The rules exempt health care-related calls that are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

Prior written express consent must be obtained in the form of a written agreement, containing the telephone number and signature of the person called, that includes a “clear and conspicuous disclosure” that by signing the agreement the person authorizes telemarketing calls from the seller using an autodialer or a prerecorded message.  The agreement must also include notice that the person is not required to sign the agreement “as a condition of purchasing any property, goods, or services.”  The signature on the consent agreement may be an electronic signature, which can include a signature obtained by e-mail, website form, or text message.

Rules governing prerecorded and autodialed calls that are not telemarketing – not advertising or sales calls – or that are calls made by nonprofit organizations are not affected by the October 16 changes.  Non-telemarketing or nonprofit autodialed or prerecorded calls to wireless phones still require prior express consent, but unlike telemarketing calls, the consent is not required to be written.