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HOT TOPICS
2015 GNYADA Membership Directory
101
Fax advertisements require either the customer’s prior written
consent to receive fax advertising or an “existing business
relationship,” which generally means the prior purchase of a
product or service from the sender. Fax communications must
contain on the first page a toll-free telephone number,
fax number, website or email address for
the recipient to opt out of future fax
advertisements.
Commercial email messages having a primary
purpose to advertise or promote a product are also
subject to restrictions. In addition to providing opt-out rights, all
commercial email must accurately identify the sender in the FROM line
and have truthful SUBJECT lines that are not misleading. They must identify the
email as an advertisement. The Federal Communications Commission (“FCC”) prohibits advertising emails or
text messages to be sent to a wireless device such as a cell phone without the recipient’s express prior written
consent which consent must designate the cell phone number to which it applies. Transaction or relationship
messages, such as informing a customer of a warranty or recall notice, are permitted based on your pre-existing
relationship. But such messages should not contain any language that could be construed as marketing or a
solicitation. An example is a text message informing a customer that their serviced vehicle is ready for pickup.
Such a message will violate the law if it includes additional advertising components such as recommending a
scheduled maintenance appointment, unless the customer has consented in writing to receive such messages.
The FTC’s Telemarketing Sales Rule requires certain disclosures to be made in telemarketing and prohibits
deceptive and abusive telemarketing acts or practices, such as misrepresentations, repeated calling, or
processing payments before all required disclosures are made. Material information (information that would
likely affect a person’s choice of goods or services) must be made truthfully and in a clear and conspicuous
manner before the consumer pays for the goods. The FTC has described“clear and conspicuous”for this purpose
as “in a way that a consumer will notice and understand”. The goal is that the disclosures be communicated as
effectively as the sales message. Among the required disclosures in telemarketing sales are telling consumers
the total costs of the products or services; any restrictions, limitations or conditions to purchase; the seller’s
refund policy; full details of any “negative option” features whereby the consumer’s failure to act accepts the
offer; and any sweepstakes information.
The Telemarketing Sales Rule also requires dealers to delete from telemarketing programs consumers whose
phone numbers are on the National Do Not Call Registry unless an exception applies such as a “prior business
relationship” with the consumer. The Telemarketing Sales Rule also requires a prompt disclosure of the seller,
that the purpose of the call is to sell goods or services, and the Rule restricts time of calling and abandonment
rates.
The 2008 amendments to the Telemarketing Sales Rule imposed additional restrictions. Dealers now need
the customer’s prior signed consent to use an auto dialer or make a prerecorded marketing call to any phone
number, and that call must give the consumer a way to immediately terminate the call and opt out by pressing
a key or using a voice-activated mechanism, as well as giving a toll-free number to limit further calls. For cell
phones, text messages are considered calls and require the consumer’s prior written consent for calls or text