Two changes to the Telephone Consumer Protection Act (“TCPA”) went into effect on October 16, 2013, imposing stricter requirements on mobile messaging and prerecorded telemarketing calls.

The TCPA (42 U.S.C. §§ 227 et seq.), enacted in 1991, permits individuals to file lawsuits seeking damages for receiving unsolicited telemarketing calls, faxes, prerecorded calls or autodialed calls.

The Federal Communications Commission (“FCC”) is empowered to issue rules and regulations implementing the TCPA. Pursuant to that authority, in a Report and Order issued February 15, 2012, the FCC issued revised regulations aimed at providing additional protections for consumers from unwanted autodialed calls. Those revisions were phased in, the last of which went into effect on October 16, 2013.

The latest revisions to the TCPA regulations prohibit the use of what is known as an “automatic dialing system,” defined broadly to potentially include the automation of any part of the calling or texting process, to initiate calls or messages that include an advertisement or constitute telemarketing to any wireless number without prior express written consent.

The regulations also require prior express written consent for prerecorded telemarketing calls to mobile or residential lines. This heightened consent requirement obligates an advertiser or telemarketer

  1. to provide the consumer with a clear and conspicuous disclosure that he/she will receive future calls that deliver autodialed or prerecorded telemarketing messages on behalf of a specific advertiser to a number authorized by the customer in the agreement;
  2. a clear and unambiguous acknowledgement that having been informed about the consequences of such consent, the consumer agrees to receive calls at the mobile number provided;
  3. the consumer consent cannot be required as a condition of purchase. Any electronic or digital form of signature recognized under state or federal law will satisfy the written consent requirement.

The caller bears the burden of establishing that prior express written consent was obtained.

The limited exceptions to the express written consent requirement include calls made for emergency purposes, or healthcare-related calls to residential lines. Calls made by or on behalf of tax-exempt nonprofit organizations to wireless customers generally require only prior express consent rather than prior written consent.

The TCPA previously recognized an exception to the consent requirement for prerecorded calls made to a consumer with whom the caller had a prior business relationship. The new regulations eliminate that exception. This means that companies will need to get consent from existing users or subscribers, not only future telemarketing customers.

The penalties for failure to comply with the TCPA remain steep—actual damages or statutory damages ranging from $500 to $1,500 per unsolicited call or message.

The potentially significant damages available for TCPA violations has led to an increased number of class actions in recent years and several recent TCPA class action settlements topping eight figures.

This article was prepared by Judith A. Archer ( / +1 212 318 3342) and Sarah E. O’Connell ( / +1 212 318 3093) of Norton Rose Fulbright’s US intellectual property group.