2018 GNYADA Membership Directory

prerecorded telemarketing calls delivered to a consumer’s voicemail, where the opt-out mechanism would not be operational, the message must provide a toll-free number that connects to an automated opt-out mechanism. Note that the TSR offers a partial exemption for telemarketing calls that require a face-to-face sales presentation before the transaction is completed. Some but not all TSR provisions apply to these calls. As noted above, the FCC also regulates telemarketing under the TCPA. Some of these standards mirror the TSR’s, and others do not. The FCC’s standards for complying with the national do-not-call list are similar to the TSR’s. The FCC, like the TSR, establishes company-specific do-not-call rights for consumers, but the standards are different. Most significantly, the FCC’s approach requires callers to have a written do-not-call compliance policy that is available upon request to anyone who asks to see it. Other than do-not-call provisions, the second key element of the FCC’s telemarketing standards regulates the use of auto dialers and prerecorded messages. This is primarily a consent standard. Callers must have “prior express written consent”to use an auto dialer or a prerecorded message to place a telemarketing call to a cell phone or to use a prerecorded message to place a telemarketing call to a residential landline. Auto dialers are any device that “have the capacity” to store numbers to be called and to dial such numbers. Even if the machine is being used to make calls manually, if the device has the capability of auto dialing or the capability of being enhanced to become an auto dialer, it will be considered an auto dialer and the call treated as if it were made by an auto dialer. When asked for an example of a device that is not an auto dialer, the FCC responded that a rotary dial phone is not an auto dialer. Over time, the FCC has consistently expanded its interpretation of what constitutes a regulated auto dialer. In July 2015, the FCC adopted the position that the TCPA’s auto dialer standard can even judge equipment based on its “potential functionalities”— equipment that is not currently configured to auto dial could still be regulated as an auto dialer if it could be configured in the future to have the capacity. Given the FCC’s approach, dealers should proceed with extreme caution before taking the position that its dialing equipment is not covered by the TCPA’s auto dialer standard. The “prior express written consent” required by the FCC’s TCPA rule must be a written agreement signed by the consumer. It should include the consumer’s telephone number, identify the seller receiving the consent, and be sufficient to show that the consumer received “clear and conspicuous” notice of what the consumer is agreeing to. What makes the FCC’s approach stricter than the TSR’s is that the consent must also be sufficient to show that the consumer received clear and conspicuous notice of the fact that the seller cannot condition a purchase on the consumer providing this consent. The TSR also prohibits conditioning a purchase on this consent, but the TSR does not require the agreement to say so. Customers can withdraw their consent“through any reasonable means” including orally, at any time. The FCC has taken the position that a text message is a telephone call to a cell phone subject to the same consent requirements as auto dialed calls and prerecorded messages. As a result, any marketing text message sent using technology that satisfies the TCPA’s auto dialer definition requires “prior express written consent.” (The FCC’s TCPA rule imposes a less restrictive “prior express consent” standard for non-marketing calls to cell phones that use an auto dialer or a prerecorded message.) The FCC’s TCPA rule also imposes disclosure requirements that are specific to prerecorded messages. Prerecorded telemarketing messages must identify the seller at the outset of the message and provide the seller’s telephone number during the message. Consumers must be able to use the telephone number provided to make a company- specific do-not-call request. These messages, even with valid consent, must include an automated mechanism for

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