The Telephone Consumer Protection Act: Changes in Established Business Relationships and Prior Express Consent

The Telephone Consumer Protection Act (TCPA) was enacted in order to address telemarketing practices that are perceived to threaten consumer privacy and public safety. In 2013 the Federal Communications Commission (FCC) changed the rules with regards to whether calls can be made if there is an established business relationship and prior express consent.

Established Business Relationship

Prior to October 2013 there was an "established business relationship" exemption for pre-recorded telemarketing calls made to residential landlines. That exemption has since been eliminated. Now advertisers must obtain the consumer's written consent, regardless of whether there existed a previous business relationship.

Prior Express Written Consent

In order to obtain "prior express written consent" there must be a written agreement signed by the consumer who will be receiving the calls or text messages. The disclosure must also be "clear and conspicuous" specifically authorizing the seller to send telemarketing communications when using automatic telephone dialing systems or artificial or prerecorded voices.

An electronic or digital signature can be used to sign the agreement. The consent agreement can be "signed" by using a website form, email, voice recording, or keypad touch. The agreement should clearly identify the authorized calling party. The consent cannot be required as a condition of making a purchase. If there are any questions regarding the consent the company has the burden of demonstrating that clear and conspicuous disclosure was provided and consent was obtained unambiguously.

"Called Party"

The definition of "called party" has not been clearly addressed by the TCPA and has not always been understood by telemarketers. The Seventh Circuit however has addressed this issue in a case involving the reassignment of cell phone numbers. In this case it was found that under the TCPA the definition of called party is not the intended recipient of the call. Rather the called party is the current subscriber of the phone. Therefore, once a phone number has been reassigned to another person, a telemarketer is no longer authorized to continue to make calls to that number.

Intermediary Consent

The FCC has clarified whether a third party intermediary can provide consent for a consumer to receive information text messages to a cell phone number. The FCC noted that the TCPA is ambiguous when it comes to how consent needs to be obtained. However, it was not Congress’ intention that the TCPA be a “barrier to normal, expected, and desired business communications.” A company can rely to the affirmative representation of third parties that consent has been obtained. However, the company should be aware that if consent was not actually obtained the company may still be subject to TCPA enforcement and private actions by the recipients who did not actually give their consent.

Transactions Resulting in Debt

In a recent FCC amicus curiae submitted to the Second Circuit, the FCC stated that under the 2008 Clarification Order “prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” In this case the phone number was provided to close the account of a deceased relative. Therefore, the phone number was provided after the transaction that resulted in the debt and prior express consent was not given.

Revocation

Prior express consent can be revoked at any time provided the revocation is made in the proper manner. How a consumer can revoke depends on the jurisdiction. In the Third Circuit, certain factors have been considered when determining whether a letter demanding that calls stop constitutes revocation, including whether:

• Consent can be revoked under common law
• Any ambiguity in the TCPA should be resolved in the consumer’s favor

In this case, it was found that as long as the company made the calls manually, there would not be a violation of the TCPA.

In the Eastern District of Wisconsin a consumer attempted to use an outgoing voicemail message to revoke consent. However the court found that since the company was using prerecorded messages to contact the consumer, the company would not receive the revocation. Therefore the revocation was invalid and there was no violation of the TCPA.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the Fair Debt Collection Practices Act and how debt collectors should act. For more information, click here to learn more about this act and how it can help you.

Our experienced attorneys here at Krohn and Moss Consumer Law Center have also provided many helpful resources regarding the TCPA and the FDCPA and how telephone debt collectors should act. We have been successfully representing those abused and taken advantage of by debt collectors for years, and have a long list of successful stories to share with you. We offer a FREE CASE REVIEW for you to assess whether we can assist you with your matter. Please do not hesitate to contact us toll free at 1-800-875-3666 or visit our website at http://www.krohnandmoss.com/.