William E. Raney, Partner - Copilevitz & Canter, LLC
As you know, effective October 16th the FCC has changed its standards for "prior express consent" calls to cell phones for marketing purposes. 47 U.S.C. § 227(b)(1)(iii). After that date, marketing calls to cell phones using an automated telephone dialing system (ATDS) will only be permitted with the prior express written signed consent of the recipient.
Non-marketing calls or text messages will still be permitted with prior express consent defined as the person giving that number to the caller and not making instructions to the contrary.
One exemption to the above change in prior express consent for marketing purposes exists, however, based on a 1992 FCC ruling specifically affirmed by the new TCPA rules.
Cellular telephone companies are allowed to dial their own customers using an ATDS or prerecorded message and do not need to obtain prior express written signed consent for their calls, marketing or otherwise. 7 FCC Rcd 8752, 8775 (1992).
Based on the plain language of § 227(b)(1)(iii), we conclude that the TCPA did not intend to prohibit autodialer or prerecorded message calls to cellular customers for which the called party is not charged. Moreover, neither TCPA nor the legislative history indicates that Congress intended to impede communications between radio common carriers and their customers regarding the delivery of customer services by barring calls to cellular subscribers for which the subscriber is not called. Accordingly, cellular carriers need not obtain additional consent from their cellular subscribers prior to initiating autodialer and artificial and prerecorded message calls for which the cellular subscriber is not charged.
Id. The new FCC ruling affirms this decision.
Congress did not intend to prohibit autodialed or prerecorded message calls by a wireless carrier to its customer when the customer is not charged. The Commission based its conclusion on the fact that neither the TCPA nor its legislative history indicates that Congress intended to impede communications between common carriers and their customers regarding the delivery of customer services by barring calls to wireless consumers for which the consumer is not charged. Nothing in the record or the Commission's analysis of consumer complaints provides it a reason to alter its finding.
77 FR 34233, 34235-34236 (2012).
So if you are a wireless telephone company, the October rule change may not affect your calls to your own customers. You should review the issue with counsel, however, to ensure compliance.
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