On July 20, 2023, major changes take effect in the Federal Communications Commission’s (“FCC”) Telephone Consumer Protection Act (“TCPA”) rules. These changes are years in the making (the Order was released in December 2020!), but long delayed in implementation. Here’s what you need to know about the new rules.
For reference, we have prepared a document showing the upcoming changes to the TCPA rules. You can download that document here.
1. Informational robocalls made to landline residential telephone numbers are no longer fully exempt from the TCPA’s consent requirements.
Because the majority of consumer complaints are related to telemarketing, the TCPA’s rules have always been aimed primarily at limiting marketing calls (that is, calls or texts encouraging the purchase or rental of, or investment in, property, goods, or services). The new rules will apply limits on the number of informational calls—such as surveys or debt collection calls—that a caller can place each month without prior express consent. Those limits are:
- Maximum of three calls using an artificial or prerecorded voice to a residential number within any consecutive 30-day period for:
- Non-Commercial Calls
- Examples: calls conducting scientific noncommercial research, political polling, or similar noncommercial activities
- Commercial Calls that Do Not Introduce an Advertisement or Constitute Telemarketing
- Commercial calls that do not advertise the commercial availability or quality of any property, goods or services, and are not made for the purpose of encouraging the purchase of or investment in property, goods or services
- Examples: collections, commercial market research, and notices of data security breaches
- Tax-Exempt Nonprofit Organizations
- Calls made by or on behalf of tax-exempt nonprofit organizations
- Non-Commercial Calls
- Maximum of one call using artificial or prerecorded voice per day and three calls using artificial or prerecorded voice per week, to a residential number for:
- HIPAA-related calls
- Calls that deliver a healthcare message that are made by a HIPAA “covered entity” or its “business associate”
- HIPAA-related calls
2. Those exempted calls made to landline residential telephone numbers using an artificial or prerecorded voice must provide instructions to enable call recipients to opt out.
Among other mandatory disclosures, all of these calls must state, during or after the message, the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of the business, entity, or individual that made the call. The telephone number provided must permit any individual to make a do-not-call request during regular business hours.
These calls must also include an automated, interactive voice- and/or key-press opt-out mechanism for the called person to make a do-not-call request. This mechanism must include brief instructions—presented within two seconds of providing the required identification information about the caller—explaining how to use the mechanism. If the called person uses the mechanism, the caller must immediately record the opt-out on the caller’s do-not-call list and terminate the call. If the caller leaves a voicemail, a callback number must be provided that leads directly to this automated opt-out mechanism.
3. All callers that place robocalls to landline residential telephone numbers using an artificial or prerecorded voice must institute do-not-call procedures.
Callers must have procedures in place that meet the FCC’s minimum standards for complying with do-not-call requests. First, callers must have a written policy—available on-demand—that requires the maintenance of a do-not-call list. Second, callers must train their personnel on this policy. Third, callers must record opt-out requests on the caller’s do-not-call list (including telephone number, date/time of opt-out request, and the called party’s name, if available) and honor the opt-out within a reasonable time, not to exceed 30 days. Fourth, during calls all callers must identify themselves, the entity on whose behalf they are calling, and the telephone number at which the caller may be contacted. Fifth, an opt-out request may be limited to the calling party (and not its affiliated entities), unless the called party makes a request to the contrary. And sixth, callers must honor do-no-call requests for 5 years from the time the request is made.
These new requirements impose additional limitations on many robocalls to residential landlines. Combined the new state laws governing telemarketing, the patchwork of laws governing both informational and marketing calls and text messages is becoming increasingly complex. Businesses undergoing calling and texting campaigns should remain vigilant as litigants will continue to seek claims under these laws.
