While every industry is different, all industries should beware of key RULES to follow to ensure your targeted marketing isn’t crossing legal lines.
Unsolicited communications are to individuals on the Do Not Call List are prohibited – UNLESS the contact is made:
· At the consumer’s request; · By a charitable or political organization that is seeking donations; · As part of a survey, or for the purpose of research seeking an opinion; · In connection with an existing debt or contract for which payment is due; or · By a newspaper publisher, or his or her agent or employee, in connection with the publisher’s business.
As a business owner, you must HAVE PERMISSION from the person to contact them. The second they request no contact; you MUST remove them from your list. Failure to remove a contact once they ask for no further contact carries steep penalties.
THE CURRENT REGULATIONS STEM FROM:
The Telephone Consumer Protection Act of 1991 (TCPA) which was enacted to protect U.S. consumers from unwanted communications by restricting the use of auto-dialers, prerecorded sales messages, and unsolicited sales calls, text messages, or faxes.
The TCPA prohibits telephone solicitations that:
· Are made to residences before 8 am, and after 9 pm; · Fail to provide the consumer with the solicitor’s identity, including his or her true phone number via caller identification service,10 and an opportunity to opt out of the call, and all future calls made by that solicitor; · Send artificial or pre-recorded messages to a residential line; and use an auto-dialer, artificial message, or pre-recorded messages to a cellular, emergency, or hospital room line.
It also prohibits contact with consumers register with the National Do Not Call Program – UNLESS the calls are:
· Made with a consumer’s prior, express permission; · Informational in nature, such as those made to convey a utility outage, school closing, or flight information; or · Made by a tax-exempt organization.
Federal Court rulings confirm that Congress intended a broad definition of auto-dialers – so erring on the side of caution is wise when planning any telemarketing strategy. More recent rulings and decisions allow consumers to opt of contact and revoke consent consumer by “any reasonable means whether oral or in writing.” This is important for business owners to understand as it shifts the burden of proving a consumer has not notified the merchant that he or she no longer wishes to accept text messages or call to the merchant and invites “he said / she said” contests in the courts.
The Federal law is continually being challenged and interpreted and consent will remain a hot topic. Recent decisions have focused on the revocability of consent where the consent was obtained gratuitously (online lead forms) – revocable at any time and where the consent is an express provision of a contract – may not be revoked. The key take-away is that interpretation and restrictions as a result of TCPA will continue to evolve. Anyone that utilizes telemarketing must keep current to prevent penalties and legal action resulting from their business practices.
States can add more stringent laws if they feel it is necessary. Florida has done just that!
As of July 1, 2018, a newly enacted Florida law makes unsolicited ring-less voicemails a no-no within the state. Specifically, Senate Bill 568 amended the definition of “telephonic sales call” to include “voicemail transmissions”- which are defined as “technologies that deliver a voice message directly to a voicemail application, service, or device” – i.e., ring-less voicemails.
Telemarketers and businesses using telephone marketing need to closely scrutinize both their calling practices and the technologies they use. Some may want to consider whether the Florida orange juice is worth the squeeze in the wake of the new law.
BEWARE BEFORE YOU DIAL IN FLORIDA!
1. You MUST have Consent or “opt in” 2. You CANNOT use ring-less dialing to circumvent Consent. 3. You MUST allow clients the ability to “opt out” 4. Penalties are HEFTY, so make sure your company understands the processes of dialing in Florida.
To get on the Do Not Call list, go here: https://www.donotcall.gov
References: 1. Federal Communications Commission, Stop Unwanted Calls and Texts—The National Do Not Call List, (Dec. 5, 2017) https://www.fcc.gov/consumers/guides/stop-unwanted-calls-and-texts (last visited Jan. 11, 2018). 2. 47 U.S.C. § 227(a)(4); See also, 47 C.F.R. § 64.1200 (2012). 3. Palm Beach Post http://protectingyourpocket.blog.palmbeachpost.com/2018/03/21/ringless-voicemail-florida-breaks-ground-with-new-law/ 4. Venable LLC https://www.venable.com/fcc-releases-its-long-awaited-tcpa-ruling-but-dont-hang-up–there-will-be-more-07-16-2015/ 5. All About Advertising Law https://www.allaboutadvertisinglaw.com/2018/03/florida-delivers-message-to-telemarketers-no-unsolicited-ringless-voicemails-starting-july-1-2018.html 6. Florida Senate Bill 5
Co Written By: Jessica Kendrick, Esq. and Sarah Geltz, Esq.