Proposed rules would increase FCC restrictions on “robocalls”
You would think marketing experts would realize that making you crawl off your couch to field an unsolicited phone solicitation – especially one delivered via prerecorded message (i.e., a “robocall”) – is a poor way to generate loyal customers. But the practice persists.
Robocalls and other forms of telephone solicitation have been such an irritant that Congress, over the years, has passed several laws to regulate them, giving both the FCC and the Federal Trade Commission (FTC) authority to adopt telemarketing regulations. The two agencies’ regulations generally track one another, but sometimes gaps appear.
The FTC recently amended its rules to tighten the robocall restrictions. The FCC now wants to come into sync with the FTC, and accordingly released a detailed Notice of Proposed Rulemaking.
You might ask: Why do we need both agencies to adopt regulations? Can’t we just rely on the FTC? Well, you probably could, if things were set up differently. But as it is, the FTC’s jurisdiction to regulate telemarketing, oddly enough, is less than universal: it doesn’t cover common carriers (e.g., telephone companies or airlines) when they are “engaged in common carrier activity”. Similarly, the FTC telemarketing rule does not reach banks, federal credit unions, federal savings and loans, or non-profit organizations. The FCC’s telemarketing jurisdiction, by contrast, covers promotions by all those industries. Moreover the FCC has jurisdiction over both interstate and intrastate telephone solicitations, while the FTC’s rules cover only interstate telemarketing.
Under the proposed the FCC’s proposed new rules:
- Robocallers would be required to get “express written consent” before delivering prerecorded telemarketing messages to any residential customer, whether or not he/she has registered on the FTC’s “do not call” list. (Current FCC rules require such written consent only for those on the “do not call” list.) The proposed requirement would apply even if an established business relationship exists between the caller and the customer which otherwise permits live telemarketing calls. Under the FCC’s proposal, “written” consent for robocalls would not actually need to be “written”, but could also be obtained in other ways, including pressing a particular number on the phone keypad. That flexibility would, of course, cushion the blow for telemarketers. BUT the written “consent” would have to: (a) reflect that the telemarketer had provided “clear and conspicuous notice” to the consumer that he/she was authorizing delivery of robocalls and that the consumer is willing to receive such calls; and (b) make clear that the consent was not obtained as a condition to the purchase of any good or service; and (c) include the consumer’s phone number.
- Robocaller messages would be required to include an automated, interactive mechanism to allow consumers to opt out of receiving future robocalls from that particular company.
- During any one campaign, telemarketers using automated dialing equipment to connect consumers to live pitchmen (or pitchwomen) would be permitted to abandon no more than three percent of the calls that people answer. (A call is abandoned, according to the FCC, if the consumer is not connected with a sales representative within two seconds after the end of the greeting.) The FCC’s current rule allows the same abandonment rate over a 30-day period, thereby permitting the telemarketer to average its rate over multiple campaigns.
- Healthcare-related prerecorded messages from certain federally regulated entities would be exempt. This includes messages such as flu shot and prescription refill reminders, requests for documents needed for insurance billing, and calls to encourage enrollment in treatment programs.
The proposed amendments would not change other robocall exemptions, such as fundraising calls from non-profit organizations, calls from politicians or political campaigns, and calls from commercial entities that are purely informational, such as airline flight cancellation notices. Emergency alerts are also exempt.
Comments regarding the proposed rules are due 60 days after the Notice of Proposed Rulemaking is published in the Federal Register, which has not yet occurred. Reply comments are due 30 days after the comment deadline. We will publish the dates when they become available.