2021 Membership Directory Final

TELEMARKETING UPDATE

Supreme Court Allows Use of Automated Technology to Make Certain Calls to Cellphones Without Prior Consent

2021 MEMBERSHIP DIRECTORY & SERVICES GUIDE HOT TOPICS

During the first week of April 2021, the U.S. Supreme Court issued a landmark, unanimous decision regarding the Telephone Consumer Protection Act (TCPA). The TCPA protects consumer privacy by restricting telemarketers’ use of autodialing equipment to send robocalls. Since its passage in 1991, the Federal Communications Commission (FCC) has applied an ever-expanding interpretation of what is an“autodialer”to the point that your employees’individual cellphones are considered autodialing equipment subject toTCPA restrictions.

Telemarketer

That meant dealers had to obtain prior written consent from their customers to communicate with them electronically by cellphone or text messaging. And, because it can be very costly to a dealer if they violate TCPA rules (up to $1,500 per call or text) compliance guidance to dealers has erred on the side of extreme caution. For instance, dealers were told it was okay to send a text message, without prior consent, when reminding a customer of a service appointment, but that it was not okay to include in that text message a suggestion that their tires need replacing. That would be construed as telemarketing and a violation of the TCPA. In short, the FCC considered modern cellphones to be autodialing equipment because they store phone numbers and can be used to autodial a phone number.

The Supreme Court disagreed with the FCC’s interpretation and ruled that the TCPA’s autodialer ban was only designed to restrict automated dialing using a computer to dial a series of phone numbers in sequential order, or by generating and dialing numbers at random, to deliver a prepackaged telemarketing message to whoever should pick up – not individual cellphone equipment. What Dealers Need to Know This decision will not put an end to TCPA complaints from consumers, but it allows dealers to consider using more modern techniques that do not store or generate numbers randomly or sequentially to interact with consumers. Dealers must still obtain prior consent from their customers for marketing and non-marketing calls to cellphones and landlines when the call delivers a prerecorded or artificial voice message. Dealers should not call consumers who have registered their phone numbers with the Do-Not-Call list or who have instructed the dealership to “stop calling”them. This is not legal advice, dealers should consult with their attorney about compliance with the TCPA or any other related federal or state regulatory obligations.

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