Advertising Law Tool Kit - Ninth Edition | 2021

Venable / 75 74 / Venable Telemarketing and Texting Consider the following factors when marketing, or accepting orders, via telephone: • Marketing calls and text messages to cell phones made using an “autodialer” are subject to signed, written consent requirements. Class action lawsuits for alleged violations of cell phone calling and texting rules are endemic. • Outbound calls are subject to DNC and other requirements. Exceptions for contacting former or existing customers or recent prospects vary from state to state. • Upsells on inbound or outbound calls are subject to disclosure and consumer protection requirements that marketers often overlook. • Federal law requires the maintenance of DNC policies. • Many states require telemarketers to obtain a permit or otherwise register before making calls. • “Robocalls” made with prerecorded voice messages are virtually banned, except when the consumer has provided signed, written consent and the caller meets other requirements. • Calling and texting times also vary at the federal and state levels. Marketers that want to reach customers and prospects by telephone and text continue to face regulatory hurdles from the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), and state authorities. Enforcement of Do-Not-Call (DNC) laws, laws restricting the use of prerecorded or artificial voice messages (a.k.a. “robocalls”), disclosure requirements, consent requirements for text messaging programs, state telemarketer registration requirements, and other restrictions continues to impact marketers that use telemarketing. The protection of cell phone users’ privacy rights continues to be a top priority for the FCC and private plaintiffs, including class action lawyers. While marketers have learned to live with enhanced “prior express written consent” requirements for autodialed marketing calls and text messages to cell phones that have been in place since 2013, new compliance struggles continue to emerge. Questions remain over what types of equipment or systems constitute an autodialer, including the extent to which “human intervention” in dialing a call may be helpful to a marketer. Marketers that believe they have legitimately obtained consent from an individual still face uncertainties about whether they are liable for calling a number that has been reassigned to a new subscriber who didn’t consent. New applications that integrate group messaging and texting services may or may not be subject to the FCC’s consent requirements. Daniel S. Blynn dsblynn@Venable.com +1 202.344.4619 Ellen T. Berge etberge@Venable.com +1 202.344.4704 Stephen R. Freeland srfreeland@Venable.com +1 202.344.4837