The FCC today issued its Final Telemarketing Sales Rule today. As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer:
Moreover, while we revise our consent rules to require prior written consent for autodialed or prerecorded telemarketing calls, we maintain the existing consent rules for nontelemarketing, informational calls, such as those by or on behalf of tax-exempt non-profit organizations, calls for political purposes, and calls for other noncommercial purposes, including those that deliver purely informational messages such as school closings. Our rules for these calls will continue to permit oral consent if made to wireless consumers and other specified recipients, and will continue to require no prior consent if made to residential wireline consumers. . . . Additionally, we note that many commenters expressed concern about obtaining written consent for certain types of autodialed or prerecorded calls, including debt collection calls, airline notification calls, bank account fraud alerts, school and university notifications, research or survey calls, and wireless usage notifications. [footnote omitted] Again, such calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either written or oral consent if made to wireless consumers and other specified recipients. (Para. 28).
While the FCC went to great length to describe the types of written consent that could meet its requirements, explaining that, in the telemarketing context, consent must be clear and inconspicuous and must explain the consequences of the consent:
Consistent with the FTC’s TSR, we conclude that a consumer’s written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer: (1) received “clear and conspicuous disclosure” of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates.95 In addition, the written agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.”96 Finally, should any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained. (Para. 33)
However, the FCC did not give clear guidance in the non-telemarketing context of what the content of the consent must be; i.e. debt collection or loan servicing calls placed to a consumer’s cellular telephone by an autodialer:
See, e.g., AFSA Comments at 12 (E-SIGN Act allows written consent to be conveniently obtained for autodialed or prerecorded telemarketing calls); National Consumer Law Center Comments at 4. One commenter asserts that obtaining written consent will be too burdensome even if obtained pursuant to the E-SIGN Act. See Financial Services Roundtable Comments at 4-10, 15 (summarizing the types of non-telemarketing calls that would be affected by a written consent requirement and concluding that E-SIGN would not alleviate retroactive compliance efforts to secure prior express written consent for autodialed, or artificial or prerecorded, non-telemarketing calls). We note, however, that Financial Services’ view appear to be focused on the number of customers who would receive autodialed or prerecorded non-telemarketing calls, which is not covered by the written consent requirement we adopt. See supra para. 28. Thus, our written consent requirement, as adopted, appears to address the concerns expressed by the Financial Services Roundtable. (Footnote 101).