September 2009 : Prerecorded Messages: The Devil is in the Details

by Joseph Sanscrainte, an attorney specializing in telemarketing law.

On September 1, 2009, we officially entered the brave new world of prerecorded messaging. As most in the teleservices world know, it was on this day that the FTC's rules regarding express written consent and the delivery of prerecorded telemarketing messages went into effect.

Now there are some out there who say the FTC has created a sort of ?death panel? for prerecorded telemarketers, but the fact is, prerecorded telemarketing messages are still allowed under certain circumstances. Under these new rules, telemarketers need to start with the concept that prerecorded messages are generally banned (?it is a violation of this rule for any telemarketer to initiate any outbound call that delivers a prerecorded message?), and then try to work within some very limited carve-outs created by the FTC (i.e., abandoned call messages, express written permission, true informational calls, and healthcare-related calls subject to HIPAA.)

Setting aside abandoned calls and messages that aren't really ?telemarketing? - this leaves just one exception: express written consent. The FTC's rules are very clear on what needs to be done to obtain acceptable written consent before delivering a prerecorded telemarketing call:

• there must be clear and conspicuous disclosure that the purpose of the agreement is to authorize the seller to place prerecorded calls to the consumer
• the agreement must be obtained without requiring that it be executed as a condition of purchasing any good or service;
• the agreement must evidence the willingness of the recipient of the call to receive calls that deliver prerecorded messages by or on behalf of a specific seller;
• the agreement must include the consumer's telephone number and signature

Assuming you have managed to fulfill all of the above, you now have what it takes to deliver a prerecorded message without running afoul of federal level rules. This is a good thing - but it's not the ONLY thing that you have to take into account. States have their own rules, and even with express written agreement, there are some issues that need to be addressed - for example, did you know:

• there's at least one state where you can't make prerecorded calls to cell phones?
• there are two states where you will have to register to make such calls?
• there are two states that require you to include, on the form that you use to obtain consent, instructions on how to withdraw consent?
• there are three states that still will not let you make prerecorded sales calls, even with express written consent?
• there are four states that have disclosure requirements that go above and beyond what the federal level rules require?
• there are seven states that have calling time restrictions that are different than the federal level rules?

Don't believe me? I don't blame you! You can check out the statutes/regulations, and the associated analysis, in the latest summary chart that will soon be added to the Compliance Guide. And if you have questions, or even (heaven forbid) have an alternative interpretation, feel free to let me know in the Compliance Forum.

I'll be seeing you online...

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