Prior Express Consent Under the TCPA
Financial institutions do not always give the TCPA and the FCC’s Telephone Sales Rule the attention they should be given.
Financial institutions do not always give the TCPA and the FCC’s Telephone Sales Rule the attention they should be given. They carry some whopper penalties-up to $1,500 per call or text message; and they include some of the least understood requirements. Sure, everyone knows the basics of the Do-Not-Call Registry but they myriad of other requirements are often overlooked or ignored. I could write several articles, or even a book, on these requirements. But today, I am going to focus on when prior express consent is required and how you can obtain it.
No Consent Required: The TCPA does not require prior express consent to make manually dialed non-telemarketing calls that do not introduce a prerecorded message, whether they are placed to landlines or wireless phones. For telemarketing calls, prior express consent can be used to permit you to call a consumer registered on the National Do-Not-Call Registry, but it is not required for manually dialed, non-prerecorded telemarketing calls to consumers not on the Registry. Likewise, the TCPA does not require prior express consent to make autodialed or prerecorded message calls to business landlines (except emergency numbers and healthcare facilities) or autodialed or prerecorded message calls to residential landlines that are made for non-commercial purposes or made for commercial purposes but do not include or introduce an unsolicited advertisement or constitute a telephone solicitation.
Prior Express Consent: The TCPA prohibits anyone from making any call using an automatic telephone dialing system or an artificial or prerecorded voice to a residential telephone number unless the call is for emergency purposes or is made with the prior express consent of the called party. Autodialed or prerecorded message calls to emergency numbers, healthcare facilities, or wireless numbers (whether commercial or consumer) that are made for non-commercial purposes or made for commercial purposes but do not include or introduce an unsolicited advertisement or constitute a telephone solicitation must also have prior express consent.
A caller can demonstrate this prior express consent by showing that the called party gave prior express oral or written consent. Unless there are any instructions to the contrary, prior express consent is presumed when a called party provided their number to the caller. Consent is also presumed for autodialed and prerecorded message calls to numbers provided by the called party in connection with an existing debt. A person giving their number to a creditor, for example as part of a credit application, reasonably evidences prior express consent to be contacted at that number regarding the debt. But, prior express consent is deemed to be granted only if the number was provided by the called party in relation to the debt owed. If you obtain the number some other way, for example via skip tracing, you do not have prior express consent. The burden is on the creditor to show that the subscriber provided prior express consent. You can demonstrate this consent by keeping records in the ordinary course of business showing that consent was provided. These records can include credit applications, loan agreements, and payment slips. The FCC encourages creditors to include language on credit applications and other documents informing the consumer that by providing a wireless telephone number the consumer consents to receiving autodialed and prerecorded message calls from the creditor or its third party debt collector at that number.
Prior Express Written Consent: For autodialed or prerecorded message calls to emergency numbers, healthcare facilities, or wireless numbers (whether commercial or consumer) that include or introduce an unsolicited advertisement or constitute a telephone solicitation you must have prior express written permission. Prior express written consent means a written agreement, signed by the called person, which clearly authorizes the caller to deliver advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice. The agreement must list the telephone number to which the called person authorizes advertisements or telemarketing messages to be delivered and must include a clear and conspicuous disclosure informing the person signing that:
By executing the agreement, the called person authorizes the caller to deliver, or cause to be delivered, telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
The person is not required to sign the agreement (directly or indirectly), or agree to enter into the agreement as a condition of purchasing any property, goods, or services.
Now, written does not require that it be on paper. The term “signature” includes an electronic or digital signature, to the extent it is recognized as a valid signature under E-SIGN or other applicable Federal law or State law.
As you can see, the TCPA’s consent requirements are complicated but with this guide in hand, it should not be overly burdensome to comply.
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