"Prior express written consent" needed for calls and SMS to cell phones.
by Jon Brodkin
by Jon Brodkin
New Federal Communications Commission restrictions on telemarketing calls and text messages go into effect Wednesday, October 16.
Adopted by the commission last year, the amendment to the Telephone Consumer Protection Act (TCPA) "will require businesses to obtain 'prior express written consent' before placing telemarketing calls to mobile phones using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice," a Bloomberg Law summary explains. "The same regulations will now also require businesses to obtain 'prior express written consent' before placing telemarketing calls to residential lines using an artificial or prerecorded voice. As a result, effective Oct. 16, oral consent is not enough."
This new restriction applies to text messages as well. The FCC's order notes that "text messaging is a form of communication used primarily between telephones and is therefore consistent with the definition of a 'call.'" Thus, the commission said it "concluded that text messages would be subject to the TCPA."
Robocallers cannot relieve themselves of the burden of obtaining written consent by claiming an "established business relationship."
But not all unsolicited messages are banned. Your wireless carrier is still free to bug you. The FCC order says, "We do not require prior written consent for calls made to a wireless customer by his or her wireless carrier if the customer is not charged. One commenter requests that the Commission clarify that wireless carriers may send free autodialed or prerecorded calls, including text messages, without prior written consent, if the calls are intended to inform wireless customers about new products that may suit their needs more effectively, so long as the customer has not expressly opted out of receiving such communications."
There are also exemptions for health care organizations, emergency calls, charities, and political groups. In addition, the TCPA does not apply to "calls that are manually dialed and do not contain a prerecorded message," the law firm Klein Moyniham Turco notes.
Penalties range from $500 to $1,500 per unsolicited call or message.
The FCC's changes to the TCPA also require "an interactive opt-out mechanism that is announced at the outset of the message and is available throughout the duration of the call." That has already gone into effect.
Robocallers have been targeted separately by the Federal Trade Commission, which has shut down telemarketing companies for ignoring the Do Not Call list and scamming people out of money.
Courtesy: arstechnica
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