On January 20, 2023, the Federal Communications Commission (“FCC”) announced the implementation of new rules governing non-marketing calls. The new rules were implemented pursuant to the Telephone Consumer Protect Act (“TCPA”) Exemptions Order published on February 25, 2021. The TCPA protects consumers against the receipt of certain unsolicited telemarketing calls and text messages. Traditionally, the FCC has focused on preventing marketing calls to consumers who have not provided their consent to receive such calls. The Exemptions Order is noteworthy because it places limits on the use of artificial and prerecorded voice in non-marketing calls, which currently do not require the recipient’s consent under the TCPA. These new regulations create numerous requirements and are scheduled to take effect on July 20, 2023.
How do the New TCPA Rules Regulate Non-Marketing Calls?
In addition to other changes, the FCC’s Order amended the TCPA rules related to the use of artificial and prerecorded voice in non-marketing calls. These changes:
(i) limit the number of calls that a caller may place within a specified time period;
(ii) require calls to include specific opt-out mechanisms; and
(iii) require all callers to institute procedures to develop and maintain internal do-not-call lists.
In addition, without a consumer’s prior express consent, when placing:
(i) non-commercial calls, such as market surveys and political polling;
(ii) commercial calls that do not qualify as telemarketing, such as loan repayment reminders; and (iii) calls on behalf of a tax-exempt nonprofit organization,
a caller is limited to a maximum of three such calls to a residential number within any 30-day period.
For healthcare-related calls that are allowed under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), a caller is limited to one call per a day, with a maximum of three per week. If a caller anticipates exceeding these call limits, it must obtain prior express consent from the call recipient before doing so.
Concerning specific opt-out mechanisms, the new TCPA rules require called parties to be able to request that they not be contacted during regular business hours. Furthermore each call must “provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing” the name of the calling party. If a called party elects to opt out using this mechanism, “the mechanism, must automatically [add] the called person’s number” to the caller’s internal do-not-call list and “immediately terminate the call.”
Finally, the new TCPA rules prohibit all previously exempted, non-marketing calls unless the caller has established do-not-call practices and procedures including:
(i) Maintaining a written do-not-call list policy that is available on demand;
(ii) Training personnel on the existence and use of the do-not-call list;
(iii) Recording and honoring do-not-call requests within 30 days;
(iv) Providing the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted;
(v) Honoring do-not-call requests made to affiliated entities if the called party would reasonably expect such a request to apply; and
(vi) Maintaining a record of do-not-call requests for five (5) years.
Callers Must Quickly Ensure Compliance
The new TCPA rules are scheduled to take effect in under three months from the writing of this blog. Callers may be caught off guard by the FCC’s comprehensive rules that now apply to calls previously exempted under the TCPA. Callers should take this time to consult with experienced TCPA counsel to ensure compliance.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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