2018 GNYADA Membership Directory

making a company-specific do-not-call request. Messages left on voicemail must provide a toll-free number that connects to this type of automated opt-out mechanism. The mechanism must immediately disconnect from the consumer’s line after the consumer uses it. Like the TSR, the FCC’s TCPA rule prohibits abandoned calls but establishes a safe harbor allowing for restricted use of a predictive dialer. Notably, unlike the TSR, the FCC’s safe harbor requires the brief message identifying the caller by name and telephone number to also include an automated mechanism for making a company-specific do-not- call request. The FCC, like the TSR, prohibits telemarketing calls before 8:00 a.m. or after 9:00 p.m. and requires transmission of caller ID information in every telemarketing call. The Telemarketing Sales Rule can be enforced by the FTC and State Attorneys General. The TCPA provides for unlimited strict liability of $500 - $1,500 per call or text message made without obtaining proper advance written consent. There is a similar penalty structure for the TCPA’s do-not-call provisions, but the penalty figure is an“up to”amount that courts can adjust, rather than a fixed amount. Numerous class actions have been filed under the TCPA in large part because of the absence of any cap on class action damages. As a practical matter, the ability to enforce extends to the called party. The “called party” means the current phone subscriber or the customary user of the cell phone. As a result, you can be held strictly liable for a call to a reassigned cell number or a wrong number, regardless of whether the original subscriber had previously provided his or her consent. There is a limited exception. For cell numbers that are reassigned, you are allowed one and only one call to the cell number to try to determine if it is reassigned, even if no one answers the call. This one call exception covers your affiliates and subsidiaries as well. The TCPA can also be enforced administratively by federal agencies. Federal agencies have also brought cases alleging unfair, deceptive, or abusive acts or practices in the context of a telemarketing campaign. Among other things, when telemarketing products, a dealer must state promptly the purpose of the call; clearly disclose, prior to purchase, the cost of the product; disclose prior to purchase all material conditions, benefits, and restrictions relating to the product; disclose clearly that the purchase of the product is voluntary and not required; make all legally required disclosures in a clear manner and at reasonable speed and cadence so the consumer can understand them; and after disclosures are read, require the customer to acknowledge the purchase is voluntary and that the customer affirmatively requests or consents to purchase the product. If the product has a cancellation or refund policy, the dealer must disclose the policy and give the phone number to cancel and the time in which to get a refund. The customer’s purchase and means of payment must also be disclosed and confirmed. If paying by credit card, the customer must give the full credit card number for payment to the sales representative. States also have laws regulating telemarketing. In addition to the existence of several state-specific do-not-call lists, some states give consumers three-day cancellation rights for telemarketing sales and a number of states have tougher telemarketing sales rules than the FTC and FCC (examples include Texas, New Jersey, Arizona, Louisiana, and Wyoming). Since the rules are very complicated, you should get advice from your counsel on your specific practices. Email. The federal CAN-SPAM Act of 2003 requires that each commercial email conspicuously give the consumer a way to opt out of receiving further commercial messages. Senders must honor opt-out requests within 10 business days. Commercial emails also must contain the sender’s address, a notification that the message is an advertisement, and other specific language. CAN-SPAM prohibits misleading subject lines and “from” line

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