FCC Publishes Final Robocall Rule

On February 15, 2012, the Federal Communications Commission ("FCC") published a long-awaited Report and Order issuing a final revised rule on the delivery of autodialed and prerecorded telephone calls.1 The final rule is intended to protect consumers from certain unwanted telemarketing calls and to maximize consistency with the Federal Trade Commission's ("FTC") Telemarketing Sales Rule.2 In sum, as set forth below, the final rule:

Requires prior express written consent to deliver an autodialed or prerecorded telemarketing call to a cell phone.3 The rule for the delivery of an autodialed or prerecorded non-telemarketing call to a cell phone remains the same: only express consent is required (not express written consent). Calls covered by the rule include text messages.4 Requires prior express written consent to deliver a prerecorded telemarketing message to a residential landline.5 Under the existing rule, a seller may place such a call if the seller has an established business relationship with the called party. The final rule eliminates that exception and requires express written consent, bringing the FCC's rule into conformance with that of the FTC. Requires that a prerecorded telemarketing message provide the consumer with an automated way to opt out of receiving further telemarketing calls. This, too, is consistent with the FTC's rule.6 Conforms the rule's call abandonment requirements to those of the FTC. We discuss each of these developments in more detail below

1. The final rule requires prior express written consent to deliver an autodialed or prerecorded telemarketing call to a cell phone.

   The Report and Order accompanying the final rule sets forth the basis for the FCC's rulemaking decisions, including its consideration of comments to the proposed rule that it received from interested stakeholders. As a preliminary matter, we note that the Report and Order repeatedly states that the final rule requires express written consent for the delivery of autodialed and prerecorded telemarketing calls to both cell phones and residential landlines;7 however, the rule revision itself, set forth in Appendix A to the Report and Order, does not extend the express written consent requirement to telemarketing calls delivered via autodialer to a landline. Attached to this alert is a redline showing the changes to the relevant sections of the rule.

   The rule has long required "prior express consent" for non-emergency autodialed or prerecorded calls delivered to cell phones, regardless of whether or not the call amounts to telemarketing. The FCC's proposed rule, issued almost two years ago, would have imposed a written consent requirement on any autodialed or prerecorded call delivered to a cell phone, regardless of its purpose.8 The final rule, however, limits the writing requirement to telemarketing calls9 and not to purely informational or transactional calls such as flight updates, debt collection calls, surveys, and bank account fraud alerts. Accordingly, the rules for non-telemarketing autodialed or prerecorded calls to cell phones remain the same: they require only prior express consent. In addition, the FCC let stand a 2007 Declaratory Ruling which stated that the provision of a cell phone number to a creditor, for example, on a credit application, reasonably evidences the necessary prior consent by the consumer to be contacted at that number regarding the debt.10 .

   It is important to note that commercial, but non-telemarketing, calls are exempt from the written consent requirement only to the extent that they include no advertising content. This means that an informational call that includes an upsell – such as a flight update followed by an offer inviting the consumer to upgrade to first class – would require written consent.11

   It is also important to note that because both the FCC and courts consider a text message to be a "call" for purposes of the rules promulgated pursuant to the TCPA,12 the written consent requirement will apply to the delivery of telemarketing text message campaigns. It is already industry practice for companies to obtain prior express consent to the receipt of such messages; however, the signature requirement and disclosure obligations are new.

   What is "prior express written consent"?

   The final rule defines "prior express written consent" as a signed written agreement that clearly and conspicuously discloses to the consumer that: (a) by signing the agreement, he or she authorizes the seller to deliver, to a designated telephone number, telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (b) the consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.13 The required signature may be "obtained in compliance with the E-SIGN Act," including via an email, website form, text message, telephone key press, or voice recording 14

2. The final rule requires prior express written consent to deliver a prerecorded telemarketing call to a residential landline.

   The law generally prohibits the delivery of prerecorded telemarketing messages; however, under the existing FCC rule, a caller may rely on its established business relationship with a consumer to place a prerecorded telemarketing message to him or her. The...