Tuesday, December 10, 2013

Marketers Wrestle Robocall, Texting Consent Rules

Telemarketers opened a troublesome gift from regulators going into the holiday season. Marketers using prerecorded or auto-dialed calls, as well as mobile texts, to reach consumers now must meet the Federal Communications Commission's stricter consent rules. Updating of the Telephone Consumer Protection Act, which went into effect Oct. 16, requires marketers to get prior written consent from consumers before delivering auto-dialed or prerecorded calls, or mobile texts. Unfortunately, this means that many companies' current opt-in databases do not comply with the new consent rules. Companies also can't claim an exemption due to a prior business relationship with a consumer, as they could in the past. In the consent agreement, companies must ask consumers to agree to receive automated or prerecorded messages and must make clear that a purchase is not a condition of the agreement. This creates a wording quandary for companies delivering a coupon or announcing a sweepstakes since no purchase is involved. It is also unclear whether a company can seek written agreement by asking a consumer to text back using a short code to receive a confirmation message that will ask for a "yes" reply to consent language. In a comment to Adweek magazine, Marc Roth, a partner in the advertising, marketing and media practice of Manatt, Phelps & Phillips, concluded that the courts will likely end up deciding how much latitude companies have in seeking consumer consent: "No one is concerned about the FCC, because they do little enforcement. The big fear is class actions. It's going to be the courts that decide what is necessary and what is not in terms of consent." For more discussion in the Adweek article, see http://www.adweek.com/news/technology/are-marketers-ready-new-telemarketing-rules-153079

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