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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Telemarketing Recap: Recent Key Developments at the FCC, FTC and in the Courts

Posted in Advertising & Marketing, Federal Communications Commission, Federal Trade Commission, Health Privacy, Litigation, Mobile, Privacy Policies

A number of key developments affecting telemarketing emerged over the past week:

1.  The distinction between informational and telemarketing calls was further defined.  The 9th Circuit held that calls intended to impart information about a customer rewards program could be construed as “dual purpose” calls subject to federal and state telemarketing restrictions.  See Chesbro v. Best Buy Co., Inc.

2.  Effective dates were announced for the new requirements on autodialed and prerecorded calls that were adopted by the FCC in February 2012. 

  • Effective immediately:  all prerecorded “heath care” messages subject to HIPAA transmitted to residential lines are exempt from the FCC’s consent, identification, time-of-day, opt-out, and call abandonment requirements.
  • Effective November 15, 2012:  the FCC’s three percent call abandonment rate must be calculated on a 30-day basis for every telemarketing calling campaign.  (It is possible that the FCC will consider delaying this effective date to January 14, 2013, to align it with the interactive opt-out requirement discussed below.)
  • Effective January 14, 2013:  all prerecorded telemarketing calls must include an automated, interactive opt-out mechanism throughout the duration of the call, as well as a toll-free telephone number that can be contacted to opt out when a prerecorded telemarketing message is left on voicemail or an answering machine. 
  • Effective October 16, 2013:  prior express written consent is required to transmit prerecorded or autodialed telemarketing calls to wireless numbers, and the established business relationship exception no longer applies to prerecorded telemarketing calls to residential lines.

3.  Comment deadlines were set for petitions seeking to clarify existing rules.  Comment deadlines were announced for three Petitions for Declaratory Ruling pertaining to different aspects of the TCPA and related FCC rules.  Comments on each Petition are due on November 15, 2012, and reply comments are due on November 30, 2012:

  • Cargo Airline Association asks the FCC to declare that delivery notifications to package recipients are exempt from the TCPA’s requirement to obtain prior express consent before making autodialed or prerecorded calls to a wireless telephone number.
  • Communications Innovators asks the FCC to clarify that predictive dialers that are not used for telemarketing purposes and do not have the current ability to generate and dial random or sequential numbers are not “automatic telephone dialing systems” as defined by the TCPA and related FCC rules.
  • CallAssistant, LLC asks the FCC to clarify whether prerecorded call segments that are supervised by a live representative are subject to the general prohibition on prerecorded calls to residential lines absent prior express consent or some other exemption.

4.  A new Do Not Call Registry was created for public safety numbers.  The FCC released a Report and Order establishing a Public Safety Answering Point (PSAP) Do-Not-Call Registry.  Once effective, the new rules will prohibits the use of automatic dialing or prerecorded calling equipment to place non-emergency calls to telephone numbers registered on a new PSAP Do Not Call Registry.  Further details about the establishment and operation of this new Registry are expected.  Once the new Registry is in place, entities that use automatic dialing or prerecorded call equipment will need to ensure that they do not place calls to designated PSAP numbers.

5.  The FTC hosted a “Robocall Summit.”  The FTC hosted a Robocall Summit, at which the state of telephone technology associated with prerecorded calls — and associated legal implications — was discussed.  No new rules or compliance initiatives were announced, but the event suggests that compliance with prerecorded call requirements remains a high regulatory priority.