This past July, the FCC (News - Alert) issued a new Declaratory Ruling in response to 21 petitions filed seeking clarification of their 2012 prior-express-written-consent rule, which basically prohibits the use of an automatic telephone dialing system (ATDS) to call or text a mobile phone for informational purposes without the prior express consent of the recipient.
It wasn’t all that long ago that cases were flooding courtroom chambers and made the FCC update what “implied consent” and “expressed consent” meant.
In 2013, confusion and hefty fines doled out to call center operators led to the FCC publishing a more updated interpretation of “prior express consent,” meaning consent “must be obtained via a prior, written and signed agreement specifically stipulating the use of automated or pre-recorded calls and text messages via auto or predictive dialers.”
New compliance rules state that telemarketing calls, as well as pre-recorded messages using automatic dialers must have prior written consent and must be compliant by October 8, 2015. Businesses and organizations may use the E-Sign Act to obtain e-signatures either via email, a website, or text or telephone key press. Consent must include a disclosure that telemarketing calls may be made using auto dialers, and that consent does not mean obligation to purchase. Businesses must maintain these consent records for four years.
How can organizations mitigate risks for the new standards?
According to DAKCS Software Systems, businesses should scrub numbers, which means cleaning the data to ensure you’re only using compliant data. They should always make sure they are, in fact, getting prior express consent, and of course watch out for reassigned numbers.
According to InsideARM, “the FCC clarifies that the TCPA requires the consent of the current subscriber or user of the wireless phone number. In other words, it’s a violation of the TCPA to use an auto dialer to call a wireless number that the caller has actual or constructive knowledge no longer belongs to the person who properly gave the prior consent.”
This ruling means that the caller can make one call simply to determine if the number has been reassigned.
Given that call centers, marketing firms and businesses rely on predictive dialers to reach out to their lead lists, maintaining compliance is key to avoiding hefty fines.
Edited by Rory J. Thompson