The Federal Communications Commission (FCC) revised its rules (37 CFR Part 64) issued under the Telephone Consumer Protection Act of 1991, to require prior, express, written consent for all autodialer or pre-recorded telemarketing calls to wireless numbers, and for pre-recorded calls to residential lines. The Rule became effective on 11 July 2012, the same day that it was published in the Federal Register.
The FCC filing reads: '[T]oday's actions offer consumers greater protection from intrusive telemarketing calls and protect consumers from unwanted autodialer or pre-recorded telemarketing calls and maximise consistency with the analogous Telemarketing Sales Rule (TSR) of the Federal Trade Commission (FTC), as contemplated by the Do-Not-Call Implementation Act in a way that reduces industry confusion about telemarketers' obligations and does not increase compliance burdens for most telemarketers.'
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In particular, consistent with the FTC's TSR, the FCC states that a consumer's written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer received 'clear and conspicuous disclosure' of the consequences of providing consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates. In addition, the written agreement must be obtained 'without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.'
Should any question about consent arises, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained.
While the FCC adopted rules to protect consumers from unwanted telemarketing robocalls, it maintains the existing consent rules for non-telemarketing, informational calls, such as those by or on behalf of tax-exempt non-profit organisations, calls for political purposes, and calls for other non-commercial purposes, including those that deliver purely informational messages, such as school closings.