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New Rules in Robocalling

The FCC announced changes to its robocall rules on February 15, 2012. While the new rules won't take effect immediately, they most likely will be effective within the next 12 months (implementation date is based on a set amount of time after the rules are published by the Office of Management and Budget, which hasn't yet occurred). However, the new rules are interesting for both what they change and what they leave in place.

The key changes include:

1. Telemarketers must obtain prior express written consent from consumers before placing autodialed to prerecorded telemarketing calls, thus ending the existing "established business relationship" exemption. 2. Written express consent from those called can, for the first time, be electronic (including a website form);

3. An interactive "opt-out" mechanism must be made available during each autodialed or prerecorded call;

4. Abandonment rate for individual telemarketing campaigns: The abandonment rate is defined as the percentage of calls that are abandoned within two seconds by the customer before speaking to an agent. The rate's calculation requires the number of abandoned calls divided by total outbound calls (in percent). The most significant change requires the robocaller to monitor its call abandonment over a 30-day period, instead of on a per-calling campaign basis.

5. Exemptions exist for certain calls regarding health care that are covered by existing HIPAA rules.

It's useful to understand the FCC's motives behind this recent action. First, the primary goal was to make its rules consistent, to the extent possible, with the Federal Trade Commission's rules, known as the Telemarketing Sales Rule, or TSR, which were enacted in 2008.

Specifically, there were jurisdictional inconsistencies between the FCC's and FTC's rules. While both agencies have jurisdiction over telemarketing, the FCC's purview covers all telemarketers while the FTC's jurisdiction excludes banks and other financial institutions, along with insurance companies, airlines and other common carriers, and, most importantly, intrastate telemarketers.

What's also of interest is what has not changed. The new rules do not apply to prerecorded informational or other calls made for non-telemarketing purposes. This means that political candidates and charities will continue to be able to interrupt dinner with abandon. Calls made to wireless devices will continue to require express consent from the device owner. The exception here is that no prior consent is required by recipients for calls made for emergencies including 911 emergency centers, hospital emergency lines, law enforcement agencies and patient rooms in health care facilities.

The implementation schedule for these rules is tied to the date when the Office of Management and Budget (OMB) publishes its approval of these new rules. Once those rules are published (stay tuned, no date has yet been set), robocallers will have 30 days in which to implement the abandoned call rate percentage. The interactive opt out mechanism must be active within 90 days of OMB publication and the prior express consent and cancellation of the "established business relationship" threshold must be in place within one year of such publication.

Although it may not seem this way initially, there is real value in having consistent regulations regarding process--particularly where consumers are concerned. In any case, these rules represent a step in the right direction.

For the entire document from the FCC, see