New TCPA Requirements for "Prior Express Written Consent" Effective October 16
SEPTEMBER 4, 2013
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PattonBoggs.com Client Alert: New TCPA Requirements for “Prior Express Written Consent” Effective OCTOBER 16 1
TECHCOMM CLIENT ALERT
NEW TCPA REQUIREMENTS FOR
“PRIOR EXPRESS WRITTEN CONSENT”
EFFECTIVE OCTOBER 16
Companies that use telemarketing campaigns must be ready for changes
to “prior express consent” requirements that go into effect on October
16, 2013. The new rules were issued by the Federal Communications
Commission (FCC) under the Telephone Consumer Protection Act
(TCPA). Beginning October 16, companies must obtain “prior express
written consent” before making a telemarketing call to a wireless number
(either consumer or business) using an automated dialing system or an
artificial or prerecorded voice, or before calling a residential line using
such a voice to deliver the message.” Further, the FCC interprets text
messages to be “calls” under the TCPA, so prior express written consent
is required for both calls and texts. The new FCC rules can be found here.
“Prior express written consent” means that there must be a written
agreement, signed by the person receiving the call or text, with a “clear
and conspicuous disclosure” that specifically authorizes the seller to send
telemarketing communications using an automatic telephone dialing
system or an artificial or prerecorded voice. Also, the disclosure must
specifically note that the person is not required to sign the agreement as a
condition of purchasing any property, goods or services. The person
consenting to receive telemarketing communications must also provide
authorization for the specific telephone number that may be contacted.
As a result of these changes, typical industry “opt-in” language to receive
telemarketing messages will not be sufficient for TCPA compliance.
The signature on the agreement may be electronic or digital. A person
may “sign” the consent by various methods, including a website form,
PattonBoggs.com Client Alert: New TCPA Requirements for “Prior Express Written Consent” Effective OCTOBER 16 2
email, keypad touch, or voice recording. Companies should be careful to clearly identify the authorized
calling party in the agreement. If any question regarding consent arises, the burden is on the company to
demonstrate that clear and conspicuous disclosure was provided and that unambiguous consent was
Before the new rules, a company conducting a telemarketing campaign could rely on a “prior established
business relationship” for some pre-recorded “robocalls” for telemarketing to residential lines. That
exception has been eliminated in the new rules. Companies now need explicit signed consent even from
their current customers.
Certain categories of calls placed to residential lines still do not require any form of prior express consent,
including non-telemarketing informational calls and political and nonprofit entity calls. Autodialed or
prerecorded calls that wireless carriers make to their customers free of charge also do not require any form
of prior express consent. However, the existing prior express consent requirements for other non-
telemarketing calls to wireless numbers remain.
Violations of the TCPA and the new consent rule may expose companies to hefty damages. Under the
TCPA, a consumer may seek statutory damages ranging from $500 to $1,500 for each, individual non-
complying robocall or SMS message, and there is no cap on total damages. This new, more restrictive rule
likely will spawn even more consumer class actions against telemarketers, especially on top of the recent
FCC ruling that a seller can be vicariously liable under the TCPA for calls made by third-party telemarketers
(discussed in a recent Bloomberg BNA article written by authors of this Client Alert).
Finally, even if the requisite prior consent is obtained, it should not be considered irrevocable. A Federal
appellate court in Philadelphia recently ruled, the first such court to do so, that a consumer may revoke prior
express consent and there is no time limit on when the consumer is able to do so.
In light of these changes, and evolving judicial application of the new requirements, all companies
employing their own or third-party telemarketing resources should carefully examine their practices and
procedures to ensure TCPA compliance and avoid potential exposure to unwanted litigation.
If you have questions about the TCPA or telemarketing legal issues, including compliance strategies, please