Today, the Federal Communications Commission adopted new rules that strengthen its restrictions on autodialed or prerecorded telemarketing calls.  The FCC billed the new rules as an effort to maintain consistency with the Federal Trade Commission’s telemarketing sales rule, which also governs telemarketing calls, and to give consumers control over the calls that they receive.

Under the new rules, companies will need to obtain prior express written consent from consumers before making prerecorded or autodialed telemarketing calls to consumers.  The FCC’s rule changes also eliminate the “established business relationship” exemption in its existing rule, which allows these calls to residential “landline” phones without consent.  The new restrictions will require written consent even for companies that have done business with the call recipient in the past.

One area of dispute over the new rules related to whether the “written” consent requirement could be satisfied electronically and what steps were necessary to make the consent effective.  Consistent with the FTC’s approach, the FCC concluded that “written” consent can be provided electronically, such as through a website form.  However it is provided, though, the FCC requires “clear and conspicuous disclosure” about what the consumer is consenting to and an “unambiguous” agreement to receive calls at a phone number designated in the consent document.  Like the FTC, the FCC also warned that consents would not be effective if the consent is a condition of purchasing goods or services.

An additional change to maintain consistency with the FTC’s rule is a requirement that telemarketing calls that use a prerecorded voice include an interactive “opt-out” mechanism, which would allow the call recipient to opt out of future calls by pressing a button.  Finally, the FCC imposed new restrictions on so-called “call abandonment,” which occurs when there is no live telemarketer available to take an autodialed call.

Although the FCC’s rule changes have a broad impact on the telemarketing business, they do not impact non-telemarketing calls, even if they are made using an autodialer or include a prerecorded voice.  As a result, prior written consent is not required for autodialed calls that do not advertise a product or service, including calls by nonprofits or for political purposes.  Also, the new restrictions do not apply to informational calls that may be commercial in nature, such as calls from an airline informing passengers that their flights have been delayed or calls from a bank informing a customer of fraudulent charges to her account, and exclude certain health care-related calls that are regulated under HIPAA, which already imposes a written consent requirement.

The new FCC rules will not be effective until they are approved by the Office of Management and Budget.  Once that happens, companies will have a year to obtain prior written consent to covered telemarketing calls and to stop covered calls to consumers with whom they have established business relationships.  The other rule changes have shorter timetables:  the interactive opt-out requirement will go into effect after 90 days, and the abandonment restrictions after 30 days.