Callers Need Your Say-So
California Lawyer

Callers Need Your Say-So

January 2014

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If your home phone has been ringing a little less often since October 16, it may be that telemarketers who used to pursue you are abiding by new Federal Communications Commission rules that took effect that day.

"These are big, really big, changes," says Stephen I. Ostrow, an Encinitas attorney who wrote How to Sue a Telemarketer. "Finally, the burden of proof is on the telemarketer."

Telemarketers now may call only consumers who actively agree to be on their lists. The Telephone Consumer Protection Act of 1991 (TCPA) already banned certain autodialed, prerecorded or artificially voiced calls (47 U.S.C. § 227), but the FCC's newest rules require telemarketers to get unambiguous, written consent from consumers, regardless of any prior business relationship. They must expressly warn consumers they'll receive telemarketing calls. And they must make clear that agreeing to calls isn't a condition to purchase. (See 47 C.F.R. § 64.1200.) The new regulations apply to prerecorded or artificially voiced calls to both residential lines and cell phones, and to autodialed calls to cell phones.

Ostrow says the changes will help consumers. "When individuals go to court against a telemarketer, [it] can sometimes take tremendous efforts to secure business records. Many of the records are overseas," he says.

Michele Shuster, general counsel for the industry group Professional Association for Customer Engagement, says the new rules will fuel the continuing debate over what constitutes automatic telephone dialing systems (ATDS). That's because the original TCPA required consent only to call a cell phone using an ATDS. As more and more consumers switched entirely to cell phones, telemarketers were already having a hard time reaching potential customers legally. The new limits narrow even further the audience telemarketers can target. In response, telemarketers have been carefully updating their procedures.

Joshua B. Swigart, a partner at the San Diego consumer rights firm Hyde & Swigart, expects another wave of litigation over marketing done by text message. The FCC has said the TCPA covers texts, which are cheaper for marketers to send but also tend to be easier to trace.

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