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How do the new FCC TCPA Regulations affect your Dealership?

Let’s examine how the TCPA addresses telemarketing, auto-dialing and consumer consent to be contacted.

What is the Telephone Consumer Protection Act (“TCPA”)?

The TCPA was passed into law in 1991, reflecting an era when cell phone carriers often forced consumers to pay for incoming calls.  Among other things, the TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls or autodialed calls. The Federal Communications Commission (“FCC”) issues and monitors rules and regulations implementing the TCPA.

What is a Telemarketing Call?

“Telemarketing” is defined as a call made by an advertiser (such as an automotive dealership) that initiates a telephone call or message to any person for the purpose of encouraging the purchase or rental of goods or services. Purely informational calls and calls for non-commercial purpose—such as those provided by AutoLoop—are not considered “telemarketing,” and are categorically exempt from the FCC’s regulations.

What is an Autodialed Call?

An autodialed call is a phone call involving a live person or pre-recorded message that is placed using an “autodialer,” or automatic telephone dialing system. An automatic telephone dialing system is defined as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. The general consensus among legal authorities on the subject is that the definition of “autodialed call” should be broadly construed. If you are unsure where you stand, we recommend that you consult an attorney who has expertise in telemarketing law.

What is a Robocall?

A “robocall” is a phone call that uses an autodialer system to deliver a pre-recorded telemarketing message.

Are SMS text messages to cell phones considered “calls” under the TCPA?

Yes, it is well-settled that the TCPA regulations on telemarketing also apply to short message service (SMS) text messages.

What are the new TCPA Rules?

In short, the amended TCPA rules state you must now have express written consent (written opt-in) to send prerecorded telemarketing messages (phone or SMS) using an autodialer to a consumer:

New Rule Effective What is the new requirement?
Prior express written consent October 16, 2013 “Unambiguous” written consent required before telemarketing call or text message. Exception: calls that are manually dialed and do not contain a pre-recorded message are exempt from the TCPA.
No “established business relationship” exemption October 16, 2013 Established business relationship (EBR) is no longer adequate permission, and no longer relieves advertisers of the prior unambiguous written consent requirement.

Summary:

As of October 16, 2013, prior express written consent is required for all autodialed and/or pre-recorded calls/texts initiated to cell phones, as well as all pre-recorded calls made to residential land lines for telemarketing purposes. Further, the “established business relationship” exemption for pre-recorded telemarketing calls to residential landlines has been eliminated.

Dealerships should plan their marketing campaigns accordingly. If you have any questions about sales marketing you have initiated outside the AutoLoop platform, you should consult your attorney to ensure compliance with the amended TCPA.