October 10th, 2013 by Maria Minsker

Back in 2012, the FCC announced revisions to the Telephone Consumer Protection Act of 1991 in an effort to provide greater protection for consumers against unwanted automated calls from telemarketers. While many of the changes have already taken effect, perhaps some of most controversial adjustments go into full swing in less than a week.

Starting on October 16, the TCPA will forbid telemarketers from reaching out to customers without prior express consent. That means no artificial and prerecorded voice messages for residential and wireless lines, and no autodialers–tools capable of storing and dialing phone numbers–for wireless phones specifically. In the past, oral consent was sufficient for most call limitations, but now, written consent is required. The customer must explicitly agree to the phone calls or text messages via an email, an online form, an opt-in text message, input from a touch-tone phone, or a recorded voice message.

And telemarketers counting on the “Establish Business Relationship” exception for prerecorded calls to residential lines, beware: while in the past, a consumer with an established business relationship with the seller was assumed to have consented to the call, fulfilling the “prior express consent” requirement, this exception no longer stands. Previous relationship or not, the company initiating the call must still get written consent.

On top of that, an interactive opt-out mechanism is required for all prerecorded calls. Providing a toll-free number that allows a consumer to opt out of future calls just doesn’t cut it anymore–the  new rule requires all prerecorded telemarketing calls to have a mechanism that allows consumers, at any point during the call, immediately to opt out of future calls and be added to the company’s do-not-call list.

Finally, the new regulations are enforcing a tightened limit on permissible abandoned calls. Often, telemarketers use predictive dialers–devices that call several numbers at once and connect calls that are answered to sales representatives. But, when a sales representative is not available to take an answered call, the call is disconnected, or “abandoned.” As the new rules take effect, the TCPA will limit  the number of permissible abandoned calls to no more than three percent of all answered calls. The new regulation also emphasizes that the percentage is to be calculated within a single calling campaign, not across campaigns.

As for what telemarketers can do to get around this, there isn’t much. At the moment, it looks like the only exemptions are healthcare-related. In light of the strong privacy protections already provided by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the FCC is exempting all prerecorded healthcare-related calls to residential lines that are subject to HIPAA. The new regulations take effect next Wednesday–is your telemarketing ready?

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