New FCC Rules
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                                                                          New FCC Rules Blog  - posts and articles from FCC compliance attorneys.


Eric S. Allen

Telemarketing Compliance Attorney

July 10, 2015.

                                                                                                    Breaking news: FCC Declaratory Ruling and Order released today, effective immediately!

After several weeks of silence since the FCC's June 18, 2015 open meeting, today the FCC finally released the full text of their new Declaratory Ruling and Order (Order). The Order drastically expands what could be considered an automatic telephone dialing system (ATDS), restricts calls to reassigned numbers, clarifies a consumers' ability to revoke consent, discusses carrier's ability to implement call blocking technology, and addresses a number of other issues. This ruling could be very harmful for the call center industry, while providing little in terms of new protection for consumers. Indeed in the written remarks by the two dissenting FCC Commissioners, they made it clear that they felt the FCC had overstepped its authority, and that they believed the new FCC rules were potentially unconstitutional.

Eric S. Allen

Telemarketing Compliance Attorney

October 16, 2013.

                                                                                                                      Breaking news: New FCC rules take effect today!

Today the new FCC rules took effect.  Specifically, telemarketers are prohibited from using any form of an automatic telephone dialing system (ATDS) to call cell phones, or to deliver any prerecorded or artificial message to any consumer number, without prior express written consent.  The new rules also abolish the EBR exemption that previously existed for robocallers.  Call centers must now obtain written consent before autodialing cell phones (or robocalling any consumer number) or face significant telemarketing fines.  Call centers should actively scrub (in real time or at least daily) against a national list of wireless numbers, as well as a list of landlines recently ported to wireless phones. Under the TCPA, violators are liable to the federal government for up to $16,000 per violation, as well as to individuals consumers for up to $1,500 per violation.  Those named (or subpoenaed) in a TCPA case should learn about TCPA defense strategy and obtain the best TCPA defense lawyer available.

Eric S. Allen
Telemarketing Compliance Attorney
October 16, 2012.

Breaking news: New FCC rules - implementation dates released!

Today the federal Office of Management and Budget (OMB) officially signed off on the new FCC rules. We can now accurately calculate the implementation dates for the various new rules contained in the February 15, 2012 Report and Order. The deadlines for compliance (effective dates) are as follows:

  1. October 16, 2013: Provisions requiring prior express written consent to autodial cell phones or to transmit recorded messages to cell phones or landlines.
  2. October 16, 2013: Provisions phasing out the established business relationship (EBR) exemption to the prohibition on robocalls to residential lines.
  3. November 15, 2012: Provisions regarding the calculation of an autodialer’s abandonment rate (now measured on a per campaign, successive 30-day measurement period).
  4. January 14, 2013: Provisions regarding the new required automated, interactive opt-out mechanism (IVR or key-press) for prerecorded messages and abandoned calls.

We encourage telemarketers to address these new autodialer law rules now rather than waiting until the respective effective dates. Ask yourself, “do I have plan in place so I can scrub out all wireless numbers by October 16, 2013?” “Do I have a quality, trusted outside data/dialer vendor to assist me in my cell scrub and compliant opt-in data protocols?” “Are my existing affiliates and vendors in compliance with the new mandatory consent and scrubbing rules?” Companies who are not prepared, and who do not have a their compliance infrastructure in place by October 16, 2013, may face significant telemarketing fines and penalties for TCPA violations ($16,000 per violation).

Eric S. Allen

Telemarketing Compliance Attorney

February 15, 2012.

Breaking news: FCC Report and Order regarding autodialer law

Today the Federal Communications Commission (FCC) released a Report and Order which adopts the proposed new FCC rules proposed in the Notice of Proposed Rulemaking previously issued on January 22, 2012. The new FCC autodialer rules will forever change the telemarketing industry. Among other implications, the new rules will subject for the first time, business-to-business (B2B) calls to the cell phone consent rules.

The new FCC autodialer rules include the following: (1) require prior express written consent for telemarketing robocalls to wireless numbers and residential lines; (2) eliminate the “established business relationship” exemption as it previously applied to telemarketing robocalls to residential lines; (3) require telemarketers to implement an automated, interactive opt-out mechanism for telemarketing robocalls, which would allow a consumer to opt out of receiving additional calls immediately during a robocall; (4) require that the permissible three percent call abandonment rate be calculated for each calling campaign, so that telemarketers cannot shift more abandoned calls to certain campaigns, as is possible if calculation is made across multiple calling campaigns; and (5) adopt an exemption to the TCPA rules for prerecorded health care-related calls to residential lines, which are already regulated by HIPAA.

The wireless consent rules no longer apply only to “consumers.” Therefore, B2B telemarketers will now be required to scrub out all cell phone numbers from their calling campaigns. It is now a violation for telemarketers (including B2B) to autodial or transmit recorded sales messages to wireless numbers (unless otherwise exempt) without prior express written consent. Telemarketers without the appropriate written consent (entity specific written opt-in), will need to purchase and scrub against a national list of wireless numbers, and a list of numbers ported to mobile phones. Alternatively, a seller might elect to hire an outside data/dialer vendor to perform the necessary scrubs and/or to obtain compliant opt-in data.

The new autodialer law rules will take effect shortly after the federal Office of Management and Budget (OMB) signs off, which will likely occur within the next few months. We will watch closely and update you as to the precise implementation dates for the various new rules.

Eric S. Allen

Telemarketing ComplianceAttorney
October 10, 2011.

What is an auto dialer?

What is an autodialer? What is a telemarketing solicitation? These are important questions given the FCC’s ominous rule change being finalized at this time. The FCC interprets and enforces the Telephone Consumer Protection Act (TCPA). The TCPA defines the term “automatic telephone dialing system” (ATDS) as “equipment that has the capacity to (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers.” The key term in this definition is “capacity.” Through certain declaratory ruling, the FCC has emphasized that this definition covers any equipment or software which has the capacity to generate numbers and dial them without human intervention, regardless of whether the numbers called are randomly or sequentially generated or come from calling lists. The FCC concluded that “the purpose of the requirement that equipment have the ‘capacity to store or produce telephone numbers to be called’ is to ensure that the prohibition on autodialed calls not be circumvented.”

The FTC and FCC use broad definitions which make it difficult to escape the telemarketing compliance regulations by claiming your calls are not “telemarketing.” The TSR defines “telemarketing” as “a plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution, by use of one or more telephones and which involves more than one interstate telephone call.” The TCPA defines “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person…” Thus, even if you do not collect money or directly solicit purchases over the phone, if your calls are part of a broader “plan, program or campaign” for which the goal is to ultimately induce a sale, the call is likely considered a sales call.

The bottom line is that if your technology has the “capacity” to dial without human intervention, you are autodialing (not manually dialing). If the ultimate purpose of your call is commercial in nature, even if you don’t collect money over the phone, your calls are likely considered “telemarketing” solicitations. Autodialed telemarketing calls, as you know, are subject to significant autodialer regulations, and the new FCC rules will make telemarketing compliance even tougher. Companies who want to survive in this industry after the new autodialer rules are passed will need to have a telemarketing compliance plan in place now.

Eric S. Allen

Telemarketing Compliance Attorney

January 22, 2010.

Breaking news: FCC Notice of Proposed Rulemaking

Today, the Federal Communications Commission (FCC) released a lengthy “Notice of Proposed Rulemaking.” The implications will be significant for the telemarketing industry if this proposal becomes telemarketing law. The proposed rules seek to harmonize certain FCC telemarketing regulations with that of the Federal Trade Commission (FTC), which also regulates telemarketing. More importantly, the proposed telemareketing rules would increase the level of regulation governing the use of autodialers and pre-recorded messages.

Specifically, the rules would: (1) require telemarketers to obtain a consumer’s prior express written consent to receive certain autodialed calls and prerecorded messages even when there is already an established business relationship; (2) require all prerecorded telemarketing calls to include an automated, interactive opt-out mechanism; (3) exempt certain HIPAA-regulated healthcare calls; and (4) adopt a “per calling campaign” standard for measuring maximum call abandonment rates.

Perhaps most significant is the proposed rule that telemarketers not be allowed to autodial a cell phone number without prior express “written” consent. The express written consent requirement would apply to virtually all autodialed calls directed to any consumer, as well as to prerecorded messages sent to wireless numbers and residences. The proposed rules pose a large concern for the industry. Over one-third of all U.S. households are now wireless-only households. Therefore, any restriction on the calling of cell phones will have drastic implications.

The FCC now invites public comments and objections from the industry and other interested parties. In the coming months, we will certainly see the major industry players filing memoranda with the Commission expressing their comments and concerns. How will telemarketers obtain the required written consent following the rule? How will the FCC ultimately define “written consent”? Will the FCC apply the new rule to business-to-business (B2B) calls as well? As the new rule is written, there appears to be no exemption for B2B calls. If passed, when would the new rules take effect? The answers to these questions will drastically affect our ability to legally autodial for many years to come. These proposed telemarketing rules are likely to be passed, at least in some form.

Eric S. Allen

Telemarketing Compliance Attorney

December 20, 2009.

 FCC rules:  Regulatory enforcement against autodialers continues.

Rumors continue to stir regarding the possibility of drastic new federal autodialer rule-changes in the near future. What looms? Both the FTC and FCC have made autodialed calls and prerecorded messages a top enforcement priority. Big examples exist from earlier this year in the Voice Touch and Transcontinental Warranty FTC enforcement actions ( In these autodialer lawsuits, the FTC is seeking millions in damages, as well as permanent injunctions preventing the defendants from telemarketing in the future.

The FTC reports that along with national Do-Not-Call (DNC) list violations, prerecorded solicitations are a leading cause of consumer complaints. Telemarketers are always advised to be aware of government regulatory “pet projects.” Without a doubt, large enforcement actions, and possibly even tighter telemarketing rules, are coming soon. Stay tuned.