Robocalls have long been a source of headaches for consumers. The US Federal Trade Commission logs about 140,000 to 200,000 complaints about them every month and they consistently rank in the FTC's top three consumer complaint categories. But now they are also likely to be a new source of pain for marketers.

Cracking Down on Calls

Tough new robocall restrictions go into effect today -- and all businesses that send autodialed or prerecorded calls to landlines or text messages to cell phones should be aware of the changes, compliance experts warn.

Chalk up the changes to a surge in consumer complaints about the calls, which the FCC claims invade consumer privacy and, in the case of calls to wireless devices, eat up minutes. The New York City-based Direct Marketing Association warned its members recently to "get consent in writing" before placing any calls or texts, which are considered autodialed calls under the law.

Lauren Lynch Flick, a partner in the Pillsbury law firm in Washington, D.C., agreed. In a phone interview yesterday, she said, "There are two major revisions set to take effect that will most significantly affect compliance measures. The biggest is the one that requires prior express written consent from the consumer. In addition, having an 'established business relationship' with the consumer is no longer an exemption from the obligation to obtain prior consent. Companies actually have to go through their databases to determine how people got on those call lists."

Marketers are also required to provide consumers the option to opt-out during each robocall.  This means they are required to provide an automated interactive opt-out mechanism during each robocall so that consumers can immediately tell the telemarketer to stop calling, the DMA explained. And there are also strict limits on the number of abandoned or "dead air" calls a marketer can make within each calling campaign. The permissible call abandonment rate is 3 percent.

The new rules only apply to telemarketing calls, defined as calls that offer property, goods or services for sale. Prerecorded informational calls like school closings and flight changes are not affected, nor are prerecorded calls from health care providers, nonprofit organizations and political organizations.

Questions Remain

The FCC revised its Telephone Consumer Protection Act (TCPA) rule last year, but the changes only take effect today. Unfortunately, because of the government shutdown, marketers with questions about the new rules can only get limited answers from the FCC website. That may explain why attorneys like Lynch Flick, who works in the firm's communications practice, have been getting "lots of questions" from affected clients.

"Even though they've had a year to ramp up, some marketers are still confused -- and it's not helpful that the FCC website is down," she said.

To satisfy the written consent requirement, Lynch Flick said a business whose products, goods or services are offered must have a written agreement signed by the consumer that meets three criteria. First, the agreement must show that the consumer received “clear and conspicuous disclosure” of the consequences of his or her consent. Second, the agreement must show that the consumer unambiguously agrees to receive autodialed and prerecorded telemarketing calls from the seller at a designated number. Third, the caller may not obtain the written consent by requiring it, either directly or indirectly, as a condition of purchasing any good or service.

Before today, the FCC did not require any form of consent for autodialed and prerecorded telemarketing calls to residential lines when the caller had an “established business relationship” with the consumer. The new rules abolish this exemption.

Simple Strategies

So what should marketers do? Here's what Lynch Flick and her colleagues Andrew D. Bluth and Darcy L. Muilenburg suggest:

  • Develop written consent forms to be executed by potential recipients of autodialed and prerecorded telemarketing calls. Because the new rules allow for electronic signatures, develop web or text-message based platforms to solicit consent.
  • Solicit written consent from any consumer for whom prior express written consent was not previously collected due to an established business relationship. These consumers are no longer exempt from consent requirements.
  • Institute an automated, interactive opt-out feature in all prerecorded telemarketing calls.
  • Calculate and document abandonment rates for each calling campaign.

Is your organization prepared for the new rules? Do you think they will hinder any of your existing marketing campaigns?