Call Me – Maybe? Consumer Consent Rules for Telemarketing

You can’t make telemarketing calls to consumers on the Do Not Call List – the federal government’s, your state’s, or your own (read our blog post Don’t Call Me Ever Again! here to learn more about compliance with Do-Not-Call List laws).

So who can you call? That depends on how you’re calling and to what numbers. In this third, in a series of three, blog posts, we help you navigate the Telephone Consumer Protection Act (TCPA) and consumer consent requirements. (Read our first blog post on the basics of telemarketing, The Dos and Don’ts of Telemarketing, here.)

The TCPA restricts the use of automated telephone dialing systems (auto-dialers) and artificial voice and pre-recorded messages (otherwise known as “robo-calls). Different rules apply depending on whether you are calling residential landlines or cell phones. If you’re telemarketing by having live people (your employees or from a telemarketing company) manually place the calls and talk to your customers or prospects, you don’t need to worry about those rules (although some states have their own telemarketing rules that impact calls to state residents, both from within and outside the state, so you will want to find out about those).

If you’re telemarketing using an auto-dialer, an artificial voice or prerecorded message, or both, you need express written consent for all telemarketing calls to mobile phones (using these telemarketing technologies) before you make the call. While just using an auto-dialer to place telemarketing calls to residential lines (a live sales person will conduct the call once the customer picks up the phone) does not require consent, using an artificial voice or pre-recorded message in a solicitation call does. You must have express written consent before you make that call – even if the call is to an existing customer because there is no exception for having an existing business relationship.

The rules are confusing and it’s easy to make a mistake. Here are some questions to guide you:

Are you telemarketing using an artificial voice or prerecorded message?

• If you are, you must have express written consent before you make calls to either residential or mobile phones.

Are you telemarketing using an “automatic telephone dialing system”?

• If you are, then you need written consent for calls to all mobile phones and only for calls to residential lines where you are also using an artificial voice or pre-recorded message.

Do you know whether you’re calling a cell phone or a residential number?

• If you do, that means you can follow the right rule (written consent for all calls to mobile numbers using the automated technology, but only for residential calls using artificial voice or pre-recorded messages). If you don’t, you might want to be cautious and get written consent before you call.

You can get written consent for telemarketing calls in a lot of ways – paper forms like bill inserts, inquiry forms and customer applications, as well as through your website, email, text and even through a telephone key-press.

Still not sure you can make the call?

There are a number of resources available from the FCC and the FTC to help you telemarket safely.