On October 16, 2013, the Federal Communications Commission’s (“FCC”) new rule implementing the Telephone Consumer Protection Act (“TCPA”) will go into effect. 

These are rules with teeth, as the TCPA allows recovery of anywhere between $500 and $1,500 for each improper communication and does not require a showing of actual injury.  This makes the TCPA a particularly attractive vehicle for class actions.  Accordingly, we highlight some of the more salient changes in the new rule below.

Currently, except in an emergency, FCC regulations require businesses to obtain “prior express consent” before making any type of call or sending any text message using autodialers or prerecorded voices to cellphones, pagers, emergency lines, or hospital room lines.  Further, the regulations also require for-profit businesses to obtain prior express consent before making commercial advertisement or telemarketing calls or messages using a prerecorded voice to any residential line absent an emergency and absent an established business relationship with the person called. 

Under the new rule, however, the established business relationship exemption disappears.  For-profit businesses will have to acquire “prior express written consent” before making advertisement or telemarketing calls or sending text messages using autodialers or prerecorded voices to a cellphone, pager, emergency line, or hospital room line.  Absent an emergency, prior express written consent will also be required for commercial advertisement or telemarketing calls or messages using a prerecorded voice made to a residential line, whether or not there is a prior business relationship with the recipient.

The written consent must be “clear and conspicuous.”  In other words, the written consent must specify the phone number for which consent is given, that the consent is not on condition of purchase, and that the consent encompasses future autodialed or prerecorded telemarketing messages.  The written consent can be electronic – for example, through e-mail, website forms, text messages, or telephone keypad functions. 

The new rule also requires prerecorded telemarketing calls to include an interactive, automated opt-out mechanism that is announced at the beginning of the message and is available at any time during the call.  If a call could be answered by an answering machine or voicemail, the message must include a toll-free number the consumer can call to opt out.  The existing three-percent limit on abandoned calls is also revised to apply to calls within a single calling campaign rather than all calls made across all calling campaigns.  Finally, the new rule exempts HIPAA-covered entities from the requirements on prerecorded calls to residential lines.

Many businesses may already have the necessary procedures in place to comply with the new rule, as many of the new requirements, including the written consent requirement, are designed to harmonize FCC regulations with those of the Federal Trade Commission.  Still, though the new rule does not go into effect until October 16, 2013, the clock is ticking.

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Photo of David Munkittrick David Munkittrick

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust…

David Munkittrick is a litigator and trial attorney. His practice focuses on complex and large-scale antitrust, copyright and entertainment matters in all forms of dispute resolution and litigation, from complaint through appeal.

David has been involved in some of the most significant antitrust matters over the past few years, obtaining favorable results for Fortune 500 companies and other clients in bench and jury trials involving price discrimination and group boycott claims. His practice includes the full range of antitrust matters and disputes: from class actions to competitor suits and merger review. David advises antitrust clients in a range of industries, including entertainment, automotive, pharmaceutical, healthcare, agriculture, hospitality, financial services, and sports.

David also advises music, publishing, medical device, sports, and technology clients in navigating complex copyright issues and compliance. He has represented some of the most recognized names in entertainment, including Sony Music Entertainment, Lady Gaga, U2, Madonna, Daft Punk, RCA Records, BMG Music Publishing, Live Nation, the National Academy of Recording Arts and Sciences, Universal Music Group and Warner/Chappell.

David maintains an active pro bono practice, supporting clients in the arts and in immigration proceedings. He has been repeatedly recognized as Empire State Counsel by the New York State Bar Association for his pro bono service, and is a recipient of Proskauer’s Golden Gavel Award for excellence in pro bono work.

When not practicing law, David spends time practicing piano. He recently made his Carnegie Hall debut at Weill Recital Hall with a piano trio and accompanying a Schubert lieder.

David frequently speaks on antitrust and copyright issues, and has authored or co-authored numerous articles and treatise chapters, including:

  • Causation and Remoteness, the U.S. Perspective, in GCR Private Litigation Guide.
  • Data Breach Litigation Involving Consumer Class Actions, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • Location Privacy: Technology and the Law, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • FTC Enforcement of Privacy, in Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.
  • The Role of Experts in Music Copyright Cases, Intellectual Property Magazine.
  • Nonprofit Education: A Historical Basis for Tax Exemption in the Arts, 21 NYSBA Ent., Arts, & Sports L.J. 67
  • A Founding Father of Modern Music Education: The Thought and Philosophy of Karl W. Gehrkens, Journal of Historical Research in Music Education
  • Jackson Family Wines, Inc. v. Diageo North America, Inc. Represented Diageo in trademark infringement litigation