News FCC Targets Robocalls and Telemarketing with New TCPA Rules

Telemarketing companies using autodialers to make "robocalls" are finally being met with tougher federal regulation. The Federal Communications Commission (FCC) revised its rules and regulations in February concerning the Telephone Consumer Protection Act (TCPA). These changes went into effect on October 16, 2013 and impose more stringent requirements on telemarketers which should help reduce their frequency. Consumers are also given the ability to easily take immediate action to limit the number of telemarketing calls that they receive.

The Robocall Problem

telephone-dialpad.jpgThe cost of making automated telephone calls has significantly decreased in price and has spawned an entire industry of telephone and text based harassment. As recently as 2009, the FCC reported that during a single day in April one company (SBN Peripherals) made 2.4 million telemarketing calls to consumers - an average of 27 robocalls per second. This alarming statistic has continued to grow as domestic companies outsource the robocalling to foreign companies (which may be related) who use VOIP (Voice Over IP) technologies to make robocalling a minor cost.

Some of the most common automated telemarketing pitches include the sales of credit card services, auto warranty protection plans, medical alert devices and credit financing. Common fraud complaints include solicitations from "card services" (who allege to be connected with the call recipient's bank or credit card company) and the makers of an "emergency medical alert system" (who claim that call recipients have been preapproved for a medical device and merely need an address for shipment.)

The Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act of 1991 amended the Communications Act of 1934 and was designed to restrict telephone solicitation and the use of automated telemarketing efforts. The TCPA governs and restricts communications related to prerecorded voice message systems, autodialers, text messages and fax transmissions. It prohibits solicitation before 8am or after 9pm (local time), requires compliance with the National Do Not Call Registry, requires the caller to provide true and accurate information about the caller and the entity they represent as well as other requirements for telephone solicitation.

New FCC Rules Targeting Robocalls

The FTC Telemarketing Sales Rule (TSR) was put into effect in 1995 and passed by Congress in an effort to protect consumer privacy and fight consumer fraud carried out using the telephone. The FTC Bureau of Consumer Protection released an extensive guide on Compliance with the Telemarketing Sales Rule. A summary of some of the important changes to the TCPA that directly affect robocalls are as follows:

Established Business Relationship Rule Eliminated, Written Consent Required

Businesses must now have prior written consent (electronic means may be acceptable) to contact you using robocalls. The prior "established business relationship" exception has been eliminated. Such a business relationship can be established when a person purchases a product or service from a company or contact is made for support or to ask a question. As per the FTC guide, electronic consent may be obtained by compliance with the E-Sign Act or state contract law.

Telemarketer Must Include Opt-Out Option in Every Robocall
In each robocall, telemarketers must provide a mechanism for the consumer to opt-out of receiving future robocalls and be immediately be taken off of the telemarketer's list. Notice must be given to the consumer at the beginning of each robocall and be made available to the consumer throughout the entire duration of the call. This ensures that consumers do not need to hang up the telephone and then make a separate effort to call another number to be removed from a telemarketing list.

More Stringent Limits on Call Abandonment
The FTC Telemarketing Sales Rule defines a telemarketing call to be "abandoned" if a person answers the phone but does not connect to a sales representative within 2 seconds from the time an automated greeting is completed. A 3% call abandonment is permitted per each call campaign, which limits the ability of telemarketers to shift call classifications and statistics in order to comply with the rules. The scope of the call abandonment safe harbor is covered within the FTC guide for compliance with the TSR.

Reasonable Specific Exceptions

Prerecorded calls and text messages that are informational in nature are generally exempt such as school closings, travel and flight changes and other communications that do not constitute commercial telemarketing efforts. While consent is not required for calls made to your home phone, oral or written consent is still required for automated prercorded calls or text messages sent to cell phones and wireless devices.

How to File a Complaint with the FCC
If you believe that a telemarketer has violated the robocall rules, you can file a complaint with the FCC.
While the FCC can take action against telemarketers as a result of your complaint, it does not and cannot award monetary or compensation consumers in most cases. However, if the FCC files a case against a telemarketer, consumers may be permitted to file lawsuits against telemarketers and receive monetary damages for violations. Consumers may also use the proceeds of the government's case as evidence in their own consumer lawsuit.
Legal Practice
Consumer - Consumer Protection
  1. US Federal
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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