New FCC Rule May Help Consumers Fight Telemarketing, Text-Spam Lawsuits

New FCC Rule May Help Consumers Fight Telemarketing, Text-Spam Lawsuits

By John Curran

Updated FCC rules regarding the way telemarketers are allowed to contact consumers on their cell phones may provide more ammo for class action lawsuits filed under the federal Telephone Consumer Protection Act (TCPA).

The new TCPA rules, which took effect Wednesday, October 16, mandate that telemarketers will have to obtain prior express written consent from consumers before calling them or sending texts. Before, companies tried to skirt TCPA violations by arguing the consumer consented to receiving such cell phone contact by voluntarily providing the company with his or her contact information.

“The prior express written consent requirement [of the TCPA] applies to autodialed or prerecorded telemarketing calls to wireless numbers and prerecorded calls to residential lines only. Limiting the written consent requirement to telemarketing calls significantly reduces the compliance burden for all entities,” the FCC said.

While there are a number of avenues whereby companies can obtain this consent, the goal is to provide consumers with a way to avoid robocalls and recorded messages, especially to cell phones. Part of this is related to cost, as the FCC notes that “the costs of receiving autodialed or prerecorded telemarketing calls to wireless numbers often rest with the wireless subscriber, even in cases where the amount of time consumed by the calls is deducted from a bucket of minutes.”

Companies who commented on the FCC rule change and bemoan the risk of more TCPA class action lawsuits being filed over the new rule may not be accounting for the significant number of exemptions that the Commission provided for telemarketers. All calls made by a human operator are governed by the statutes of the Do Not Call list, which allow for oral consent. In addition, loan service organizations who say that they are complying with federal statutes regarding mortgage refinancing are also mostly exempt.

Healthcare providers who are contacting patients about upcoming appointments or providing related information are also exempt. In addition, as long as the companies keep track of the opt-in acceptance of consumers pursuant to the E-Sign act, compliance is possible whether the consent comes from a web submission form, email or even text. Finally, the FCC notes that its requirements are similar to those that companies who market via automated phone calls must abide by provided by the Federal Trade Commission.

Still, the increase in robocalls to both landlines and cell phones may be stanched thanks to the requirements of express consent, especially due to the relative efficiency of using robocalls and mass texts compared to methods that require human input, but that would reduce the number of TCPA class action lawsuits.

If you received an unsolicited text message, robocalls or pre-recorded voice message to your cell phone, you may be able to pursue compensation under the Telephone Consumer Protection Acts. Millions of dollars have been awarded for such TCPA violations. Learn more and obtain a free case eligibility review at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation.

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