Yippee Ki-Yay – Implementation Dates for FCC and TCPA Have Been Set

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John Tallarico

This week, new FCC implementation dates were published in the Federal Register. Previously, the FCC released a Report and Order in February 2012 that made major changes to the TCPA.

This long-awaited announcement starts the clock for the new rules as listed below:

  • November 15, 2012 is the date for the measurement of the abandoned call rate changes.

  • January 14, 2013 is the date requiring that prerecorded telemarketing messages include an automated opt-out mechanism.

  • October 16, 2013 is the date requiring companies to obtain prior written express  consent from consumers before calling them with prerecorded telemarketing “robocalls” or before using an autodialer to call their wireless numbers with telemarketing messages.

Overall, the FCC Report and Order is positive and marks an end to two years of uncertainty surrounding the 2010 TCPA NPRM.  Highlights of significance:

  • The FCC simply adopted rules that mirror the FTC rules on consent for prerecorded telemarketing calls that went into effect a few years ago. Those requirements will now apply to companies that are exempt from FTC jurisdiction, like telephone companies, banks, and airlines. The FCC retained its exception, however, for wireless carriers calling their own customers without charging them for the call.

  • The requirement for prior written express consent for telemarketing calls to wireless numbers applies to calls (voice and text) that are either autodialed or prerecorded. Under the new rules, telemarketing text messages will require prior written express consent, the same as prerecorded telemarketing messages.  The same holds true for autodialed telemarketing calls to wireless phones using live operators (predictive calls).

SoundBite has been working with our clients over the past eight months to ensure our programs will meet these new guidelines, and we are confident that our solutions for compliance are firmly in place.

In addition to this significant development out of the FCC, the fun continues: three new petitions have been placed on public notices this week seeking clarification of the FCC’s TCPA rules. These petitions are important for further clarity on TCPA.  In summary, (1) The petition filed by the Cargo Airline Association asks the FCC to clarify that package delivery companies can rely upon representations from senders that the package recipient consents to receiving autodialed and prerecorded calls to a wireless telephone number for purposes of notifications regarding shipment of the package, (2) The petition filed by Communication Innovators asks the FCC to clarify that predictive dialers that are not used for telemarketing purposes and do not have the current ability to generate and dial random or sequential numbers are not “automatic telephone dialing systems” under the TCPA or the Commission’s rules, (3) The petition filed by CallAssistant, LLC asks the FCC to clarify applicability of the Commission’s TCPA rules to CallAssistant’s use of operator supervised prerecorded call segments that enable calling agents to interact with the recipient of a call by using the agent’s own voice or by pressing a button to substitute an appropriate audio recording of a response.

Stay tuned..there is never a dull moment in the wild and woolly world of regulators.

As the Vice President of Product Management for SoundBite Communications, John is responsible for the strategic evolution and delivery of product features and functionality within the company’s cloud-based platforms – SoundBite Engage™ for multi-channel communications and SoundBite Insight for preference management.

John frequently participates in regulatory discussions which impact our clients including lobbying efforts with the ACA.  He was recently awarded the 2010 President’s Award by the Telecommunications Risk Management Association (TRMA) for his role on a Regulatory Panel — the most highly evaluated session of 2010.

John has been working in the customer communications space for over 15 years, including a senior position at Nuance Communications.

Continuing the Discussion

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  • avatar Tim Parke says:

    RE: Dialer Calls to Cell Phones and consent required-

    While this article and the FCC Docs have Telemarketing written all over them.. our in house (consumer finance) attorneys insist that prior WRITTEN consent is also needed to “dialer call” a cell phone for collection purposes come October 16th 2013. Does anyone else have that legal opinion within their circles, stating the same thing? Also looking for any resource or recent case that would support gaining consent over the phone being acceptable. (we’re a First Party Collector)

  • avatar FriendoftheCourt says:

    Tim, absolutely. That is explicit in the TCPA.

  • avatar John Tallarico says:

    Tim, SoundBite works with FCC/TCPA regulatory experts on a consistent basis and I would urge you to seek a second opinion. From a layman’s view, the FCC has interpreted “prior express consent” required for sending non-telemarketing autodialed and prerecorded messages to a wireless phone to encompass those situations where the called party has given the calling party his or her wireless phone number as a contact number. In its 1992 TCPA Report and Order the Commission interpreted the term “prior express consent” by explaining that “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.

  • avatar Ginny Walker says:

    As it relates to “prior written consent”, how does this change alter or impact creditors or the debt buyers that pass the contact number to an agency? Does this mean that any consent whatsoever should be given directly and in writing to anyone prior to dialing the contact number?
    What exactly are the abandoned call changes? Where can wew find the complete rules?

  • avatar LindaP says:

    9th circuit just ruled that prior express consent is only given at the time of account application, regardless of contract provisions to the contrary by all issuers, such as any number used to contact them. So, if a consumer calls from a cell phone for a service issue, but enrolled the account with a landline, it does not constitute prior consent to robo call or otherwise call the cellphone..

  • avatar Marc Johnston says:

    Well, if the 9th circuit just ruled one way, keep a close eye out as some other circuit is likely to rule exactly the opposite.

  • avatar Melissa Green says:

    Relying on the FCC’s ruling, the 9th Circuit ruling says, “Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Id. at 564-65. Thus, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.” That opinion is here: http://www.insidearm.com/wp-content/uploads/Meyer-v-PRA-appeal.pdf?5648b8

  • avatar Melissa Green says:

    …and the link to the 2008 FCC ruling relied upon by the 9th circuit is here: http://www.gpo.gov/fdsys/pkg/FR-2008-02-01/html/E8-1891.htm

  • avatar purple-monkey buyer says:

    Does anyone have any information regarding the following questions?

    1) If I’m in the business of BUYING purple monkeys and YOU as a consumer have ADVERTISED (in the newspaper, electronically, by way of a posted notice, flyer, sign or otherwise) your one and only purple monkey for sale with your phone number to contact you… can I legally call you using my robodialer for the explicit purpose of purchasing your purple monkey?

    2) If my machine gets your voicemail, is it ok for my robodialer to leave a message in regard to purchasing your purple monkey?

    3) If you are advertising to rent your purple monkey out for parties, but I want to buy it instead… is it legal to robocall and ask if you want to sell your monkey?

    4) If after our discussion of purple monkeys I then change the subject to see if you have any interest in purchasing my green elephant, have I then violated any laws?

    5) Assuming the answer is yes to any of the first 4 questions, is there a TIME LIMIT to how long after you advertise that I may call to see if you still have the item in question?

    Note that at no time has my robocaller generated any random or sequential numbers, but merely operates off a list of people advertising their monkeys as previously mentioned.

    Despite the colorful examples used, these are serious questions. Substitute your favorite product, item or service as you deem fit.

    Thank you

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