GNYADA 2019 Membership Directory & Services Guide

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, 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. InMarch 2018, a federal appellate court set asidemuch of the FCC’s guidance interpreting the auto dialer standard. In response to this decision, many courts are returning to the original statutory standard to assess whether a particular dialing system is subject to the FCC’s consent standards. The FCC is also conducting a rulemaking to revisit this issue. Given the current uncertainty regarding the “auto dialer” standard, dealers should proceed with extreme caution when applying the FCC’s standard to their dialing equipment. 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 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

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