Are you concerned about ...
New regulations that could inhibit your lead gen efforts, tradeshow operations and list sales?
Proposals aimed at helping the USPS address fiscal issues that could carry damaging consequences, including service declines and rate increases, for Periodical mailers?
Proposed legislation that could censor sites with user-generated content, from comments to social media to blogs?
The erosion of First Amendment protections, which could impact rights of business information & media companies to sell and use valuable databases?
If so, your interests are represented by ABM’s advocacy and lobbying efforts in Washington. Click here to learn more about ABM’s government affairs initiatives and the significance of key issues to your business practices.
Policy Briefing: New FCC guidelines restructure telemarketing procedures
The Telephone Consumer Protection Act of 1991 (TCPA) regulates telemarketing calls, text messages, and faxes in the name of consumer privacy. In February 2013, the Federal Communications Commission (FCC) amended its TCPA rules. These amended rules took effect on October 16, 2013. This memo summarizes the most significant changes, but it is not intended as legal advice applicable to any company’s specific situation. Consultation with qualified legal counsel is needed for that.
The order requires prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential lines. It eliminates the established business relationship exemption for telemarketing calls to residential lines. It also requires telemarketers to allow consumers to revoke their consent through an opt-out mechanism within the autodialed or prerecorded telemarketing call itself.
Prior Express Consent
The TCPA requires "prior express consent" for telemarketing calls placed to wireless phones using an automatic telephone dialing system and for artificial or prerecorded voice messages delivered to wireless and residential landlines. A "telemarketing call" is defined as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person. The prior express consent requirement applies to all residential lines and to all wireless numbers as well. There could be a case that a traditional business landline is not subject to the rules, since it is not "residential." But a wireless number used by a person in his official business capacity is covered by the rules, since the rules apply to all wireless numbers without exception.
Under the new rules, this consent must be written, not oral. The rules allow a range of electronic consent, including "permission obtained via an email, website form, text message, telephone keypress, or voice recording." The key idea is that the consumer consent must be recorded in some verifiable fashion. So the rules allow telephone key press and voice recording, but not notes by a telephone operator of a consumer's unrecorded oral consent. If consent has not been obtained through one of these methods, the telemarketer must obtain new consent and cannot rely on a "grandfathering" of the existing consent. The consent must also not be a condition of purchasing goods or services. Purely informational messages are not telemarketing messages - such as automated or prerecorded communications from a pharmacy or a debt collector. But informational messages that include an advertising message could be deemed "telemarketing."
Established Business Relationship
The previous FCC rules allowed companies to make prerecorded telemarketing calls to residential landlines when the caller had an "established business relationship" with the consumer, without the need for express prior consent. The new rules repeal that exemption from the requirement for prior express consent. Going forward, companies who have not specifically obtained express consent from the customers with whom they have established business relationships must obtain that consent if they want to make or continue to make prerecorded telemarketing calls to their residential lines.
In its new rule, the FCC adopts an automated, interactive opt-out requirement for autodialed or prerecorded telemarketing calls. The previous rule allowed telemarketers to satisfy the opt-out requirement by including a toll-free number in the telemarketing message. The new rule requires an opt-out mechanism within the message itself. In particular, it requires that "any artificial or prerecorded message call that could be answered by the consumer in person provide an interactive opt-out mechanism that is announced at the outset of the message and is available throughout the duration of the call. In addition, the opt-out mechanism, when invoked, must automatically add the consumer's number to the seller's do-not-call list and immediately disconnect the call. Where a call could be answered by the consumer's answering machine or voicemail service, the message must also include a toll-free number that enables the consumer to subsequently call back and connect directly to an autodialed opt-out mechanism." Note that this is a mechanism for allowing a consumer who has previously given consent to revoke that consent. Including an opt-out mechanism in the telemarketing call itself is not a substitute for obtaining prior express written consent.
The information and media industry is growing in complexity:
- Audiences and marketers are becoming customers and competitors.
- Media and information are evolving into market intelligence.
- Revenue models more complex, requiring multiple sources.
- Single platform publications are now integrated multi-platform operations.
- New technologies mean new competitors.
- New capabilities are complicating ROI strategies.
Companies are navigating new revenues, developing new products, repositioning brands and seeking new talent and skills. Media and information executives are re-allocating costs to new growth; considering new metrics, case studies and benchmarks; and grappling with legislative threats.
In this dynamic environment, ABM's purpose is twofold:
First, to promote and defend our industry, through advocacy and lobbying in Washington on legislative threats to industry business practices; as well as by promoting industry to key stakeholders on Wall Street, Madison Avenue, etc.
Second, to accelerate the transformation to new business models, primarily through providing visibility into strategic options; enabling implementation through pragmatic solutions; creating a nexus for the exchange of ideas and solutions; and delivering information, education and knowledge.