The FCC Imposes New Requirements on Non-Marketing Residential Robocalls

The FCC Imposes New Requirements on Non-Marketing Residential Robocalls

Jan 04, 2021

Client Alert

Brownstein Client Alert, January 4, 2020

To ring in the New Year, the Federal Communications Commission (“FCC”) released an order imposing strict limits on the number of non-telemarketing, prerecorded or artificial voice calls that can be made to residential phone lines without prior consent. The automated landline calls will also be required to include an opt-out mechanism, and callers must implement the FCC’s internal do-not-call list rules—which previously applied only to telemarketing calls. The new requirements implement section 8 of the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (“TRACED Act”) and will take effect six months after the Office of Management and Budget (“OMB”) approves the rules.

Background

The Telephone Consumer Protection Act (“TCPA”) bars prerecorded or artificial voice calls to residential telephone lines without the consumer’s prior express consent. The FCC, however, previously exempted non-telemarketing calls from this requirement, including noncommercial calls, commercial calls that do not include an unsolicited advertisement, calls from charities, and HIPPA-related calls that deliver a health-care message. A wide variety of calls fall within these broad categories: from financial alerts to appointment reminders to polls or surveys to recall notices and prescription reminders. The exemptions for these non-telemarketing or informational calls to residential phone lines have never been subject to TCPA restrictions.

Separately, over the last decade, the FCC has exempted certain specific categories of calls and texts from the TCPA’s ban on making calls to cell phones using an automatic telephone dialing system or using a prerecorded or artificial voice without prior consent. Section 8 of the TRACED Act required the FCC to review all of these existing exemptions and determine whether they contained requirements for limiting the number of calls.

New Obligations for Residential Informational Robocalls

The new order sets a limit of three calls during any consecutive 30-day period for all non-commercial calls, commercial calls that do not contain an advertisement and calls from charities. HIPPA-related residential robocalls are limited to one call per day up to three calls per week. In setting these new limits, the FCC interpreted the TRACED Act to require it to restrict the number of these types of calls to consumers, despite arguments that the TRACED Act’s language was discretionary. The FCC believes that callers should be able to obtain consumer consent or use live agents if they want to make more calls.

Calls made pursuant to these exemptions must also include one of the two opt-out mechanisms currently required by FCC rules for telemarketing calls. Prerecorded or artificial voice messages must either: (1) include a call-back number consumers can call to opt-out of further calls; or (2) provide an automated, interactive voice- and/or key press-activated opt-out mechanism. These opt-mechanisms are further described in the FCC’s existing rules. To effectuate the opt-out requirement, callers must also implement the FCC’s rules for maintaining internal do-not-call lists, including maintaining a written policy, training staff in the existence and use of the do-not-call list, recording and maintaining do-not-call requests, and honoring do-not-call requests for five years. These company-specific do-not-call rules previously had only applied to residential telemarketing calls. In light of the complexity of these new requirements, callers should consult with counsel in developing and deploying calling limits and do-not-call policies and procedures.

Finally, the FCC codified in its rules, but did not change, the existing exemptions for certain non-telemarketing “free-to-end-user” calls and texts to cell phones. These exemptions cover package delivery notifications, urgent calls from financial institutions, certain calls from health care providers, and calls from inmate calling providers.

Transition Period

To give callers—particularly smaller companies—time to come into compliance, the FCC delayed the effective date of the new rules until six months after the OMB approves the rules. OMB approval will take some time, so the effective date will extend beyond six months. The FCC will issue a notice when the effective date is set.

This document is intended to provide you with general information regarding new FCC requirements for residential robocalls. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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