Last year the Federal Communications Commission (FCC) adopted several very significant changes to the Telephone Consumer Protection Act (TCPA). The changes to the regulations have become effective on October 16, 2013. Two of the changes include:
- A requirement that written consent be obtained prior to a business placing a call; and
- The “established business relationship” defense will be eliminated for some calls that are made to residential phone lines.
The Requirement of Written Consent
The new regulations will require that businesses obtain “prior express written consent” prior to making telemarketing calls to a consumer’s mobile phone using an artificial or prerecorded voice or automatic telephone dialing system (ATDS). When placing calls to residential lines, “prior express written consent” will be required when businesses use artificial or prerecorded voice.
Prior express written consent is defined under 47 C.F.R. Section 64.1200(f) and states:
(8) The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.
(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that: (A) By executing the agreement, such person authorizes the seller to deliver or cause to be delivered to the signatory telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and (B) The person is not required to sign the agreement (directly or indirectly) or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
(ii) The term “signature” shall include an electronic or digital form of signature to the extent that such form of signature is recognized as a valid signature under applicable federal law or state contract law.
This definition may destroy the defense that has been accepted by some courts, that a plaintiff gives their consent to receiving calls when they voluntarily provide his or her phone number during a business transaction. A consumer turning over their phone number does not satisfy the new definition of prior express written consent, which may be challenging for businesses.
Established Business Relationship No Longer a Defense
The new regulation could also make it more difficult for businesses to contact their current customers with whom there is already an established business relationship. Under the new regulations, the “established business relationship” exception has been deleted for artificial or prerecorded voice calls made to residential lines.
Therefore, starting next month, regardless of whether a company has an established business relationship with a consumer, the business will need to obtain a consumers’ prior express written consent prior to contacting them through the use of an artificial or prerecorded voice, making it more difficult for businesses to contact their existing customers.
Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the FDCPA and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.
We understand the frustration you may have when dealing with an aggressive debt collector. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 if you prefer to talk to a trained professional over the phone instead, or of course, visit our website at http://www.westopdebtcollectors.com
Adam J Krohn
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