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2015 GNYADA Membership Directory
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messages to that designated cell phone number as well. For
this reason, it would be unlawful to send a consumer a text
message requesting their consent for future text messages,
even if they respond affirmatively.
The FCC also regulates telemarketing under the TCPA. Under
amendments to its rules that took effect in 2013, a prior express
written consent is required for all prerecorded or artificial voice calls
to both cell lines and residential lines. Again note that text messages
are considered a form of calls. Under the FCC’s rules, a consumer’s prior express written
consent is required for all prerecorded telemarketing calls, for auto-dialed live agent as well as prerecorded
telemarketing calls to cell phones, and for telemarketing text messages. A pre-existing business relationship is
no longer sufficient. Auto dialers are any device that“has the capacity”to dial or store numbers without human
intervention no matter how it is used. Even if the machine is being used to make calls manually, if the device
has the capability of autodialing, it will be considered an auto dialer and the call treated as if it were made by
an auto dialer, even if dialed manually.
So a human beingmaking calls on such a device is not protected from liability. Prerecorded telephone calls must
also have an automated up-front opt-out mechanism and no more than 3% of outbound calls in a campaign
may be abandoned (calls are considered abandoned when a connection to a live agent is not made within two
seconds of answering). Abandoned calls must give the opt-out mechanism as well. The written signed consent
must be sufficient to show the consumer received “clear and conspicuous”notice of the consequences of giving
their consent to receive telemarketing calls; unambiguously consented to receive calls to the exact phone
number stated in the signed consent; and that the customer did not give the signed consent as a condition to
purchase or receive any goods or services. Note that this heightened prior written consent requirement applies
to prerecorded calls made to residential phones as well as calls and text messages to cell phones. The changes
are important because the TCPA provides for unlimited strict liability of $500 - $1,500 per call or text message
made without obtaining proper advance consent. Numerous class actions have been filed under the TCPA in
large part because of the absence of any cap on class action damages.
Some states also give consumers three-day cancellation rights for telemarketing sales and a number of states
have tougher telemarketing
sales rules than the FTC and FCC. Examples include Texas, New
Jersey, Arizona, Louisiana, andWyoming.
In 2012, the Consumer Financial Protection Bureau
(CFPB) issued two $200 million consent decrees
against credit card companies for deceptive
telemarketing of credit protection aftermarket
products, and the CFPB made clear that
the requirements of those consent decrees
apply to other creditors as well. Among other
things, when telemarketing products, a dealer
must state promptly the purpose of the call; clearly
disclose, prior to purchase, the cost of the product; disclose
prior to purchase all material conditions, benefits and restrictions relating