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October 11, 2013 / jlinder2013

Changes in FCC Regulations Increase Restrictions on Telemarketing

Beginning on October 16, 2013, the laws regulating telephone and text marketing will become more protective of the recipients of these advertisements.  Companies will now need to show that they had the “express written consent” of the consumer to whom their calls or texts were directed.   The new law, which amends the already existing Telephone Consumer Protection Act (TCPA), only applies to businesses that use autodialing equipment, and is designed primarily to protect cell phone users.  However, if the company in question uses recordings or artificial voice technology, residential phones will also be protected.

The “written consent” must be unambiguous, which means that: (i) consumers must receive a “clear and conspicuous disclosure” that they will receive future calls or texts that deliver autodialed or pre-recorded telemarketing messages on behalf of a specific advertiser; (ii) consent must not be a condition of purchase; and (iii) consumers must designate a phone number at which to be reached.  If there is a disagreement over consent, the advertiser bears the burden of proof to show that they had “express written consent.”

The TCPA provides severe penalties for each infraction, ranging from $500 to $1,500 per offending communication.  Damages will be higher if the business is found to have intentionally or knowingly violated the statute.  Almost all calls or texts that offer or market products or services to the consumer are included within the ambit of the amended TCPA provisions.

If you receive unsolicited text or telephone marketing communications after October 16, 2013, you may be entitled to relief.  Please contact Khorrami Boucher Sumner Sanguinetti, LLP for a confidential consultation.


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