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Direct Response Marketing

Phone Protection Act Changes Effective Oct. 16

11 Sep, 2013 By: Doug McPherson


NEW YORK – Attorneys say your next marketing campaign could get mired in class action lawsuits if you don’t comply with the recent revisions to the Telephone Consumer Protection Act (TCPA).

The FCC adopted two key additional protections on unwanted autodialed and robocalls that become effective October 16:

  1. Prior express written consent: Unambiguous written consent is required before a telemarketing call or text message. Calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA.
  2. No “established business relationship” exemption: An established business relationship no longer relieves advertisers of prior unambiguous written consent requirement.

So starting next month, prior express written consent will be required for all autodialed and pre-recorded calls or texts sent to cell phones and pre-recorded calls made to residential land lines for marketing purposes.

Penalties for violations range from $500 to $1,500 per unsolicited call or message. Attorneys say in determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA. Considering that telemarketing campaigns often involve thousands to, in some cases, millions, of calls and text messages, potential damages could easily reach into the millions of dollars.

In a press release, Klein Moynihan Turco LLP, a law firm in New York, said compliance with the E-SIGN Act satisfies this requirement, meaning that electronic or digital forms of signature are acceptable (such as agreements obtained via E-mail, website form, text message, telephone keypress or voice recording).

The firm also said consumer consent must be unambiguous, meaning consumers must receive a “clear and conspicuous disclosure” that they will get future autodialed or pre-recorded telemarketing messages from a specific advertiser; that their consent is not a condition of purchase; and they must designate a phone number at which to be reached that should not be pre-populated by the advertiser in an online form. Limited exceptions apply to this requirement, such as calls or texts from the consumer’s cellular carrier, debt collectors, schools, informational notices and healthcare-related calls.

If a dispute concerning consent arises, the advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that consumers unambiguously consented to receive telemarketing calls to the number they provided. Attorneys suggest advertisers keep consumers’ written consent for at least four years, which is the federal statute of limitations to bring an action under the TCPA.

Klein Moynihan Turco LLP adds that evidence of Internet-provided written consent includes, but is not limited to, website pages with consumer consent language and fields, associated screenshot of the consent webpage as seen by the consumer where the phone number was inputted, complete data record submitted by the consumer (with time and date stamp), together with the applicable consumer IP address.


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