While Washington worked out its problems this week, a new federal rule quietly took effect that addresses one of the top complaints by consumers to the Federal Communications Commission: robocalls.A robocall is that annoying, unsolicited, automated telemarketing call you get at home, even if you signed up for the Federal Trade Commissions Do Not Call list.The new FCC rule, which took effect Wednesday, makes such robocalls to homes and unwanted text messages to mobile phones illegal unless consumers provide written consent that they want to receive them. Robocalls to cellphones were already against the law, an FCC spokesman said.The commission supported its decision by citing complaints that reflected consumer frustration with robocalls and the requirement that we maximize consistency with the FTCs robocalls rules, the spokesman said. Violations of the Telephone Consumer Protection Act come with a hefty fine $500 to $1,500 per unsolicited call or message.This is probably one of the most significant changes in 15 years in telecommunications law, said Jeff Stalnaker, chief executive officer of PrivacyStar, which offers a service to screen and block calls to smartphones. The new rule snuck up on people, including the telemarketing and advertising industry.In the past, marketers could use an established business relationship, such as a previous purchase, to circumvent the need to obtain robocall consent. But that exemption is no longer allowed under the new rule. That written consent has to be clear and conspicuous and say that you want to accept these calls. But who in their right mind would sign such a consent? Stalnaker said. In the old days, if you signed up for a contest, you unknowingly signed up for robocalls. That can no longer be done.The rule has also tightened up another way that telemarketers can sneak in consent by using disclosure forms when you make an online purchase.The government and the FCC makes it very clear, he said. Bringing consent into a disclosure or purchase agreement is not going to work anymore. The new rules apply only to prerecorded telemarketing calls, defined as those that offer property, goods or services for sale. Other prerecorded informational calls for things like school closings and flight changes are not affected. Other exemptions include prerecorded calls from healthcare providers, nonprofit organizations and political organizations.Live calls from companies you have done business with are also excluded from the consent requirement, unless the consumer has specifically told the business not to call. Live calls from companies you have not done business with are illegal if you have signed up for the Do Not Call list.Marketers were already required to let consumers opt out using an automated system during a robocall. There is also a strict limit of 3 percent on the number of abandoned or dead air calls a marketer can make within each calling campaign. Another new FCC rule requires that the business meet a burden of proof that written consent has been obtained from the consumer, Stalnaker said.Its going to be interesting to see how this plays out, he said. The government is trying to get rid of these robocalls.To avoid robocalls, Stalnaker says, consumers should first sign up their home and cellphone numbers for the Do Not Call list.The list is now 10 years old. Within the first three months of the program, more than 50 million numbers were registered, according to the FTC. That has skyrocketed to 221 million.Since the registry began, the FTC said, it has won 105 cases against violators and the courts have ordered $118 million in civil penalties and $787 million in other recovery. Major defendants include DirecTV, Columbia House, Craftmatic, ADT Security Systems, Ameriquest Mortgage and the marketer of Rascal Scooters. Litigation against Dish Network is ongoing.Robocall violators have also been sued by the FTC in 34 cases, according to the agency. Courts have ordered $51 million in civil penalties and $198 million in other recovery. Last year, five robocall companies, including one that used a female voice calling herself Rachel, were shut down by the agency.If consumers receive a robocall, Stalnaker recommends that they file a complaint with the FTC and consider hiring a telemarketing attorney to sue them. Under FCC rules, consumers who sue will incur no court costs, and telemarketing attorneys generally work on contingency. Over the next six to 12 months, a lot of those telemarketers will be sued by consumers, he said. Consumers should be relentless. This new rule hits telemarketers in the pocketbook.
Teresa McUsics column appears Saturdays. TMcUsic@SavvyConsumer.net