Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 77 Consider the following when marketing, or accepting orders, via telephone: • Marketing calls and text messages to cell phones made using an autodialer and/or prerecorded message are subject to signed, written consent requirements. Class action lawsuits for alleged violations of cell phone calling and texting rules are endemic. • New developments in state law should be considered in terms of both new regulatory requirements and additional enforcement rights of private plaintiffs. • 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. Potential exceptions vary by state and require careful review to determine applicability. • Calling and texting times also vary at the federal and state levels. • Under the FTC’s Telemarketing Sales Rule (TSR), third parties (such as call centers, lead generators, fulfillment companies, payment processors, and others) that provide substantial assistance to a seller that violates the TSR could be held liable for the seller’s actions. an automated system for the selection or dialing of telephone numbers or the playing of a prerecorded message ... without the prior express written consent of the called party.” In addition, the FTSA now allows for private plaintiff enforcement. Courts are addressing the contours of the FTSA’s autodialer definition and whether the FTSA applies purely to intrastate communications (those that begin and end in Florida) or whether the statute extends to interstate calls and text messages. Additionally, 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.