Are Robocalls Illegal?

Many businesses are under the mistaken impression that sending pre-recorded outbound telemarketing calls are flat out illegal.  Not true.  As long as it’s done in accordance with the latest amendments to the Telemarketing Sales Rule, you’re free to use that marketing method.   The biggest obstacle?  Since September of 2009, businesses need to have signed written permission before they can call consumers.   This is true regardless of whether the business already has a relationship with the consumer it’s trying to call.

If you want to secure a consumer’s permission to deliver prerecorded messages, you must first inform the consumer in a clear, conspicuous manner that you are asking for their consent.   Fortunately, you don’t have to have an actual wet-ink signature. The consumer can provide the required consent by responding to an email, pressing a keypad prompt during a live call with a sales agent, or clicking a button on a website to show that the consumer consents to receive messages from your business.    The consumer must also be prompted to provide you with the number at which he’s agreeing to receive the calls.  Note,  that you can’t require the consumer to agree to these calls in order to get goods or services.

Consumers who have consented to receive prerecorded telemarketing messages can change their minds at any time and ask you to stop, so the rules also require you to tell the consumer at the beginning of the message how they can stop future calls, and you must provide an automated opt-out that the consumer can activate by voice or keypress throughout the call.  If a message is left on a voicemail or answering machine, you must also provide a toll-free number at the beginning of the message that will connect the consumer to an automated opt-out system.

If a consumer opts out while receiving a prerecorded message, the call should be disconnected immediately, and the number should be immediately place on  your internal do not call list.  Note that you cannot require the consumer to speak to a live agent in order to opt out- the request must be processed automatically if it’s made during the course of playing the pre-recorded message.

Some prerecorded messages still are permitted under these rules — for example, messages that are purely informational (flight cancellations, appointment reminders, debt collection calls, etc.), but the business doing the calling isn’t allowed to promote the sale of any goods or services during an informational call.

Other exceptions include political calls and calls from certain healthcare providers. For example, pharmacies are permitted to use prerecorded messages to provide prescription refill reminders. Prerecorded messages from banks, telephone carriers and charities also are exempt from these rules if the banks, carriers or charities make the calls themselves.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.

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