FCC Proposal Could Adversely Affect How Companies Communicate with Their Customers
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The Federal Communications Commission (FCC) has requested comment on proposed revisions to its rules under the Telephone Consumer Protection Act (TCPA). The FCC’s TCPA regulations currently prohibit a person from initiating a telephone call using an automatic telephone dialing system or an artificial or prerecorded voice to certain types of telephone numbers, including wireless numbers, unless the person has the “prior express consent of the called party.” The proposal would define “prior express consent” to be a written agreement from the called party that: (i) the caller obtained after a clear and conspicuous disclosure that the purpose of the agreement is to authorize the delivery of calls to the recipient using an automatic telephone dialing system or an artificial or prerecorded voice; (ii) the caller obtained without requiring that the agreement be executed as a condition of purchasing any good or service; (iii) evidences the willingness of the called party to receive such calls; and (iv) includes the telephone number to which such calls may be placed in addition to the recipient’s signature. (The proposal also includes provisions relating to telemarketing involving prerecorded messages.)
In light of the increasing reliance by consumers on wireless telephones, the proposal has raised concerns across a variety of industries that rely on efficient communications with their customers for account-related or similar purposes. The consent requirements to use automated equipment to dial a wireless number are onerous, and it is likely that a significant number of consumers would withhold such consent. For example, the proposal would have a significant impact on how a financial institution may attempt to contact its customers who use wireless phones regarding a loan modification, a delinquency, or suspected fraud. We urge clients to review their customer communications strategies to determine whether the proposal, if adopted, could have an adverse effect on those strategies. Comments on the proposal are due by May 21, and reply comments are due by June 21.
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