Privacy & Information Security Law Blog

On June 11, 2012, the Federal Communications Commission published in the Federal Register its final revised rules requiring prior express written consent for all autodialed or prerecorded telemarketing “calls” to wireless phones, and for prerecorded telemarking calls to residential lines. The FCC takes the position that the “calls” covered by this written consent requirement include essentially all marketing-oriented text messages. The FCC’s rules implement the findings of the Commission’s February 2012 Report and Order.

Automated or prerecorded calls that are considered purely “informational” (e.g., those alerting consumers of their bank account balances, fraudulent credit card activity or school closings) will not be impacted by the revisions to the rules, though they remain subject to other legal restrictions. For example, the FCC requires companies to obtain consent before initiating such informational calls to wireless phones, unless the calls are made for emergency purposes.

Under the FCC’s revised rules, companies also will be unable to use the “established business relationship” exemption to place “robocalls” to consumers without the consumers’ prior express written consent, and prerecorded telemarking calls will have to contain an interactive, automated opt-out mechanism, similar to the mechanismrequired by Federal Trade Commission’s rules. Finally, the FCC’s rules restrict the number of allowable abandoned calls for each calling campaign.

According to the FCC’s summary in the Federal Register, the final rules seek to “offer consumers greater protection from intrusive telemarketing calls,” while maximizing consistency with the FTC’s regulations and reducing confusion among telemarketers regarding their compliance obligations.

Though the revised rules will become effective on July 11, 2012, the key provisions must first undergo a review by the Office of Management and Budget, after which there will be a phase-in period.