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Questions and Answers about the 2012 FCC Order on wireless telemarketing

by Joseph Sanscrainte, an attorney with Bryan Cave, LLP, specializing in telemarketing law.

The rules around telemarketing sales calls to cell phones (or I should say wireless devices) have always been complicated and depending who you talk to can vary.  Fortunately for me as an attorney (and unfortunately for most of the contact center industry) there is a very clear message in the FCC's new rules:

 

  1. Telemarketing calls made via a dialer to wireless devices (which includes text messages) without express written consent are illegal and subject to fines.
  2. Pre-recorded message sales calls are the FCC and FTC's top priority for enforcement and there is no exemption for calling customers.  (There are a few exemptions, most notably political and survey calls, and health care calls covered under HIPAA.)

 

The webinars that we hosted regarding the new FCC autodialer and prerecorded rules generated a lot of questions. So, we gathered all the top questions submitted on both webinars and put together a summary of all the answers.

So, with no further ado, we now present, for your reading pleasure and overall edification - 'The Top Questions Generated by Ryan and Joe's FCC Webinar'

Q: How do these rules impact internet leads?

A: If you're relying on internet inquiries to call cell phones, you need to either: 1) figure out how to get express written consent with signatures in the future; or 2) scrub out cell phone numbers before you call.

Q: What about calls made to existing customers to thank them for purchasing a product - are these calls impacted by the new rule?

A: If calling a residential line, there's no impact - but if you're using a predictive dialer calling a cell phone number, you have to make sure you have prior express consent (it just doesn't have to be in writing).

Q: What about calls made to existing customers to inform them that a renewal date is near?

A: Well, these would be "telemarketing" calls because by informing the customer that a renewal date is near, you are in essence asking them to renew, right?? So, prior express written permission would be required if you use a predictive dialer to call a cell phone.

Q: How can I make sure I'm getting express written consent with a signature via a website?

A: Under the e-Sign Act, you can obtain a signature via the internet, but the consumer has to be marking the form in question with the INTENT of "signing" it. So, a disclosure alerting the consumer that he/she, by checking the box (or whatever) is signing the form and giving permission to be contacted at the number provided is required.

Q: Can I get express written consent with a signature orally, via a recording?

A: Yes, but it's tricky. Call your attorney!

Q: Ok, I get it!? You have to express written consent to call a cell phone with a telemarketing message using a predictive dialer. BUT - what about MANUAL dialing?

A: Same deal as before - the FCC was only given the ability to regulate "automated telephone dialing systems" in this context, so manual dialing falls outside the FCC's rules here.

Q: So, I can manually dial across all 50 states?? Aren't there states that prohibit manual AND auto calls to cell phones?

A: There are five states that restrict both manual and predictive telemarketing calls to cell phones: TX, NJ, AZ, LA, and WY.

Q: Are the new regulations only applicable to new contacts, or do they also apply to leads that were created prior to the regulations taking effect (i.e. is it retroactive for all customers in your calling list?).

A: Retroactive - new rule is the rule for everything going forward. (Of course, we have to wait for the implementation date!!!)

Q: Has the 1 year period started as of yet??

A: Nope, we have to wait for the OMB's approval of the new regulations to be published in the Federal Register.

Q: What about B2B calls?

A: As for B2B calls - generally speaking, there's no restriction for the majority of the FCC rules regarding B2B calls.  HOWEVER, the rule that says you can't make a telemarketing call to a cell phone without prior express written consent applies to B2B (there's no restriction to the language here.)  So, even if you're calling B2B, you should still scrub out cell phone numbers or get express written consent.

 

Joseph Sanscrainte

jws@sanscrainte.com

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