FCC Set to Enforce New Telephone Privacy Rules

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More regular opt-ins may become common practice.
More regular opt-ins may become common practice.

On October 16 new rules go into effect under the Federal Communications Commission's Telephone Consumer Protection Act (TCPA) that can have serious repercussions for SMS text marketers who do not take heed of new opt-in requirements.

In harmonizing its rules with the Federal Trade Commission's Do Not Call Implementation Act, the FCC's revise does away with the exception of presumed consent for preexisting customers. “Previously, if you had an existing relationship with a customer, you didn't have to get additional consent to market to them. Now from a texting and telephone point of view, you need to get prior written consent,” says Linn Foster Freedman, leader of the privacy and data protection group at law firm Nixon Peabody.

“Written consent” may come in the form of emails, website forms, or telephone key-press functions, all  legally admissible under the E-Sign Act. Failure to do so can be expensive if class-action lawyers go into action. The TCPA allows for statutory damages ranging from $500 to $1,500 per violation.

Freedman, who will be conducting webinars on TCPA compliance as the effective date nears, fears that even text marketers who have made it a practice to obtain consent could be caught unaware by the severity of the law. It mandates that telemarketers, for instance, include an interactive opt-out mechanism at the beginning of each phone call.

“I am counseling clients who use SMS text to get consent often and to constantly give an option to opt out,” Freedman says. “Compliance should be a high priority for any marketers using telephones. We're talking serious potential statutory damages here.”

One SMS text marketing provider says his company is not in panic mode over the new rules, though it is taking precautions. “Most of our clients are already in compliance with the FCC and are getting written consent, but the FCC order is ambiguous as to what the specific requirements are and we're looking at whether we need updated opt-in requirements,” says John Tallarico, VP of service management at Genesys. “Our approach is, let's be conservative and only communicate with people who want to be communicated to.”

For marketers who may have been caught napping as the new FCC rules take effect, Freedman suggests two immediate courses of action. One, review tech operations and begin installing prior consent mechanisms if they're not already in place and, two, make sure employees are educated on the new rules.

“If all employees of are not made aware of the changes,” she warns, “they can be a company's worst enemy.”


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