As of October 16, 2013 outbound telemarketers using auto or predictive dialer equipment to call wireless numbers, deliver a prerecorded call to a landline and/or a wireless number, or telemarketers using text message marketing campaigns, will need to comply with the most burdensome marketing privacy requirement regulators can impose: prior express written consent.

These revisions are an effort by the FCC to bring the Telephone Consumer Protection Act (TCPA), passed in 1991, in line with the FTC’s Telemarketing Sales Rule with regards to prerecorded calls; however, the new consent rules have taken a step further and regulated how marketers may communicate with wireless telephone numbers .
Here’s what you need to know about upcoming revisions to the TCPA.
Effective October 16, the TCPA rule will be revised to:

  • Require prior express written consent for telemarketing calls made to cell phones using auto dialers, including the delivery of marketing text messages. The new consent requirements will eliminate the EBR exemption for making calls to wireless numbers when using an auto or predictive dialer or when including prerecorded message.
  • Maintain the requirement for prior express consent for non-marketing calls placed with an auto or predictive dialer made to wireless numbers
  • An informational prerecorded message sent to a landline or mobile phone that includes any marketing or promotional messaging must also meet these requirements.

The FCC defines prior express written consent as a signed written agreement that clearly and conspicuously authorizes telemarketing calls made using an auto dialing system or including an artificial or prerecorded message to be delivered to a specified wireless number. The written consent must also include a disclosure that the consumer does not need to provide such consent as a condition of a purchase.
After October 16, only marketers who have obtained prior express written consent may use an auto or predictive dialer to call any wireless number in the country or to include prerecorded messages in those calls. Telemarketers who have obtained an opt-in to send consumers marketing text messages will not be in compliance with the new law; the opt-in must be in writing or comply with the federal E-SIGN Act.
The standards for what constitutes express written consent vary widely state by state and these variations make this already burdensome requirement even more complicated.
The revision eliminating the use of EBR exemptions for dialing wireless numbers will have even greater significance as more consumers switch from landlines to wireless.
These changes to the TCPA signify the continued shift by regulators to an opt-in framework for outbound marketing. Over the last two decades, most regulators have been content to simply ensure consumers had a clear, easy way to opt out of marketing they didn’t want to receive in the future.
Increasingly, marketers will need to earn consumer’s attention, interest, and consent for future communications before reaching out to them, either digitally or over the phone. These changes to the TCPA herald that future but don’t mean that outbound telemarketing will cease to be a source of a company’s growth.
Gryphon offers real-time, automatic solutions to keep your business in compliance with the TCPA, its forthcoming revisions, and other evolving marketing privacy regulations. Furthermore, the experts at Gryphon specialize in leveraging the law to expand your marketing reach and get the most of out your outbound telemarketing campaigns.
Stay tuned for more coverage of how these changes to the TCPA will impact telemarketers and what your business can do about it.

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