2015 GNYADA MEMBERSHIP DIRECTORY

Fax advertisements require either the customer’s prior written consent to receive fax advertising or an “existing business relationship,” which generally means the prior purchase of a product or service from the sender. Fax communications must contain on the first page a toll-free telephone number, fax number, website or email address for the recipient to opt out of future fax advertisements. Commercial email messages having a primary purpose to advertise or promote a product are also subject to restrictions. In addition to providing opt-out rights, all commercial email must accurately identify the sender in the FROM line and have truthful SUBJECT lines that are not misleading. They must identify the

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email as an advertisement. The Federal Communications Commission (“FCC”) prohibits advertising emails or text messages to be sent to a wireless device such as a cell phone without the recipient’s express prior written consent which consent must designate the cell phone number to which it applies. Transaction or relationship messages, such as informing a customer of a warranty or recall notice, are permitted based on your pre-existing relationship. But such messages should not contain any language that could be construed as marketing or a solicitation. An example is a text message informing a customer that their serviced vehicle is ready for pickup. Such a message will violate the law if it includes additional advertising components such as recommending a scheduled maintenance appointment, unless the customer has consented in writing to receive such messages. The FTC’s Telemarketing Sales Rule requires certain disclosures to be made in telemarketing and prohibits deceptive and abusive telemarketing acts or practices, such as misrepresentations, repeated calling, or processing payments before all required disclosures are made. Material information (information that would likely affect a person’s choice of goods or services) must be made truthfully and in a clear and conspicuous manner before the consumer pays for the goods. The FTC has described“clear and conspicuous”for this purpose as “in a way that a consumer will notice and understand”. The goal is that the disclosures be communicated as effectively as the sales message. Among the required disclosures in telemarketing sales are telling consumers the total costs of the products or services; any restrictions, limitations or conditions to purchase; the seller’s refund policy; full details of any “negative option” features whereby the consumer’s failure to act accepts the offer; and any sweepstakes information. The Telemarketing Sales Rule also requires dealers to delete from telemarketing programs consumers whose phone numbers are on the National Do Not Call Registry unless an exception applies such as a “prior business relationship” with the consumer. The Telemarketing Sales Rule also requires a prompt disclosure of the seller, that the purpose of the call is to sell goods or services, and the Rule restricts time of calling and abandonment rates. The 2008 amendments to the Telemarketing Sales Rule imposed additional restrictions. Dealers now need the customer’s prior signed consent to use an auto dialer or make a prerecorded marketing call to any phone number, and that call must give the consumer a way to immediately terminate the call and opt out by pressing a key or using a voice-activated mechanism, as well as giving a toll-free number to limit further calls. For cell phones, text messages are considered calls and require the consumer’s prior written consent for calls or text