FCC Telemarketing Rule Changes Could Mean More Advertiser Vigilance

Consumers Can Revoke Opt-Ins Anytime, Affirms FCC in Phone Ruling

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An upcoming ruling from the Federal Communications Commission could make it more difficult for advertisers to comply with telemarketing regulations.

The commission on Thursday said consumers should be allowed to use robo-call-blocking technologies, and that their phone-service providers would not face legal obstacles when enabling such blocking. The ruling, of which details are expected next week, would also make it easier for people to revoke consent for robo-calls and automated mobile text messages from companies they previously opted to receive messages from. The changes affect how the Telephone Consumer Protection Act of 1991 will be implemented.

It is unclear how the rules will play out, but there is concern that companies would be required to update their phone lists no matter how a consumer asks to be removed from it. Dissenting FCC Commissioner Ajit Pai called this into question in his statement, complete with a McDonald's-related pun:

"Would they have to record and review every single conversation between customers and employees? Would a harried cashier at McDonald's have to be trained in the nuances of customer consent for TCPA purposes? The prospect makes one grimace."

"One of the real challenges for advertisers is going to be how do you comply with that rule," said Christine Reilly, partner and co-chair of TCPA compliance and class action defense at Manatt, Phelps and Phillips. "If it's an advertiser or company that has multiple ways of interacting with consumers…that particular part of the ruling is concerning."

If anything, the rule changes could mean advertisers need to upgrade their compliance systems to ensure that databases are updated to reflect consumer choice, she added. Database updates would also be needed to ensure that companies don't contact numbers that have been reassigned.

The new rules allow firms to contact a number that's been reassigned to a new subscriber only once after the subscriber transfer. In other words, if someone opts-in to receive communications from a company, switches phone numbers, and that number is given to a different subscriber, a company would be expected to take that number of its opt-in list. However, oftentimes companies are not made aware that a change has been made to the number.

"There is no database that exists right now that can tell you in real-time when you send a message out who is the current subscriber of that telephone number," said Ms. Reilly, who expects more class action lawsuits as a result. "The impact is that companies are really going to have to be very vigilant on their compliance."

The agency also said Thursday that consumers "are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers," and that technologies that enable Internet-to-phone texting are considered autodialers, and require consumer consent.

The FCC said it received 215,000 complaints about unwanted calls last year, though some lobbying efforts also may have influenced the changes.

Democratic digital firm Revolution Messaging believes its 2012 petition requesting the FCC to define internet-to-phone text messaging as a form of auto-dialing helped influence the Internet-to-phone TCPA change. The company complained that Republican organizations were pushing the legal limits of text messaging and effectively spamming voters.

"Today's action by the FCC is a win for consumers and all political campaigns who want to use SMS to communicate with supporters respectfully and responsibly," noted Scott Goodstein, founder of Revolution Messaging, in a press statement.

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