The Federal Communications Commission (FCC) recently announced the implementation of new rules governing non-marketing calls. The new rules were implemented pursuant to an FCC order (Order) amending the federal Telephone Consumer Protection Act (TCPA). The Order was issued pursuant to the requirements outlined in the federal TRACED Act.
As dealers are aware, the TCPA currently requires that certain unsolicited telemarketing calls and text messages may only be placed to consumers who have provided their consent to receive such calls. The new rules outlined in the Order are noteworthy because they place limits on the use of artificial and prerecorded voice calls made for non-marketing purposes. Currently, such calls made to residential telephone lines (landlines) do not require the recipient’s consent under the TCPA, but the new regulations create numerous requirements with respect to these calls and are scheduled to take effect on July 20, 2023.
How do these new TCPA rules regulate non-marketing calls to landlines?
In addition to other changes, the Order amended the TCPA rules related to the use of artificial and prerecorded voice in non-marketing calls to landlines by adding new restrictions and requirements and requiring that callers implement and maintain certain policies and procedures before making any such non-marketing calls using an artificial or prerecorded voice.
- Limits on the number of calls that a caller may place within a specified time period
First, the Order imposes new restrictions on the number of non-marketing calls a caller can make. A caller using an artificial or prerecorded voice can now make a maximum of three such calls to a residential number within any 30-day period without a consumer’s prior express consent: (1) non-commercial calls, such as market surveys and political polling; (2) commercial calls that do not qualify as telemarketing[1]; and (3) calls on behalf of a tax-exempt nonprofit organization.[2]
- Requirements for calls to include specific opt-out mechanisms
Second, the Order requires 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.”
- Requirements that all callers institute procedures to develop and maintain internal do-not-call lists
Lastly, the Order prohibits all non-marketing calls to landlines unless the caller has established do-not-call practices and procedures.[3] These are the same procedures that must be established before making any telemarketing calls to a landline, so many dealers are likely to have already implemented these procedures, but they will need to be adapted to include artificial and prerecorded non-marketing calls to landlines.
Reminder: This does not change current consent requirements for other types of calls.
The rule change in the Order does not impact current consent rules for placing (a) automated informational calls to cellphones or (b) telemarketing calls to consumers. The TCPA still requires you to:
- Ensure you have prior express consent before placing:
- automated informational calls to cellphone numbers, or
- automated solicitation calls to landlines;
- Obtain prior express written consent prior to placing automated telemarketing calls (or texts) to cellphones;
- Honor consumer requests to opt out of automated and marketing calls and maintain records of this activity.
What do these changes mean for dealers?
First, dealers who make any calls to landlines using an artificial voice and prerecorded messages, such as service or appointment reminders, or service status update calls, should consult with their attorney to ensure that they meet the requirements of the new rules by the July deadline. This will include potentially new technological steps (such as the automated opt-out), as well as policy changes, and procedural and other steps that must be taken.
In addition, all dealers should take this opportunity to review their do-not-call compliance procedures, including training and document retention requirements, to ensure that they meet all of these requirements so that the TCPA exemptions for non-marketing calls will continue to apply. These rules are important but are also quite complicated. Dealers need to review their practices with respect to calling or texting consumers (along with those of their service providers or others acting on their behalf) and work with their lawyer(s) to ensure they are meeting the requirements of the TCPA and other related telemarketing rules and regulations.
NOTE: This is not legal advice. Nor does this memorandum address state or local requirements. Dealers must consult with their legal counsel regarding these and other federal, state, and local telephone and telemarketing restrictions.
[1] This would include, for example, calls using an artificial or prerecorded voice for service or appointment reminders or updates.
[2] A caller can still obtain consent or place non-marketing calls to landlines using an agent if more calls are needed.
[3] These include: (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.
