Beginning on October 16, 2013, two new important FCC regulations that broaden business liability under The Telephone Consumer Protection Act (TCPA) will go into effect. These new rules apply to both a consumer’s land lines and to text messages sent to cell phones.
Under the old rules, there was an exception from liability for telemarketing calls or text messages placed with the prior express consent of the recipient. The FCC concluded that persons who knowingly release their phone numbers have in effect given their permission to be called at the number which they had provided a business absent instructions to the contrary.
Under the new rules, the exception from liability will only be effective if the consumer has physically or electronically signed a written agreement that clearly authorizes the business to send advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or pre-recorded voice message to a specific telephone number. The agreement must have a clear and conspicuous disclosure that signing the agreement is optional and cannot be a condition of purchasing any goods or services, and that a consumer doing so consents to receiving these types of calls at a particular number.
The second big change concerns the elimination of the established business relationship exception. Under the old rules a business could avoid liability for otherwise prohibited calls if the business had a prior relationship with the consumer. Now, even business with a relationship must obtain the same written consent of consumers before they may be called with an auto-dialer or be left a robo-message.
I suggest that the following statement be conspicuously posted on your web site or in your written contract: “By checking this box I hereby consent to receiving auto-dialed and pre-recorded messages at the telephone number listed above. I further understand that this authorization is not a condition of any purchase of goods or services.”
Finally, be sure to keep a record of this consent on file for purposes of proving the consent for a period of four years.