Calls exempt from the Telephone Consumer Protection Act ("TCPA") will soon be subject to call volume limits. At the close of 2020, the Federal Communications Commission ("FCC") issued new guidance capping the number of artificial or prerecorded voice calls that may be made to residential phone lines without prior express consent.
The FCC's Report and Order provides new guidance about how many of these exempt calls may be made with impunity under the TCPA. The Order implements Section 8 of the Telephone Robocall Abuse Criminal Enforcement and Deterrence ("TRACED") Act, which was signed into law by President Trump in late 2019. In the TRACED Act, Congress amended provisions of the TCPA and required the FCC to specify within one year the "classes of parties" who may make a "number of such calls" exempted from TCPA liability.
The FCC's time to issue guidance closed at the end of 2020, so it issued its Order specifying the callers, call purposes, and number of calls allowed under the TCPA in the future. While the FCC made no new rules about calls to cell phones, its imposed new requirements on TCPA-exempt calls to residential lines. See 47 U.S.C. 227(b)(2)(B).
The TCPA has long allowed calls to residential lines made (a) for non-commercial purposes, (b) for non-telemarketing commercial purposes, (c) by tax-exempt nonprofit organizations, and (d) for health-related purposes under the Health Insurance Portability and Accountability Act ("HIPAA"). Callers making these types of calls may use an artificial or prerecorded voice without violating the TCPA.
Under the FCC's new rules, these exempt calls will be subject to maximum caps:
- Maximum three (3) calls to residential lines for non-commercial purposes - Callers may make 3 calls using an artificial or prerecorded voice within a consecutive 30-day period.
- Maximum three (3) calls to residential lines for non-telemarketing commercial purposes - Callers may make 3 calls using an artificial or prerecorded voice within a consecutive 30-day period.
- Maximum three (3) calls to residential lines from tax-exempt nonprofit organizations - Callers may make 3 calls using an artificial or prerecorded voice within a consecutive 30-day period.
- One (1) HIPAA call to residential lines - Callers may make 1 artificial or prerecorded voice call per day, but no more than 3 calls per week.
Notably, callers must allow call recipients the opportunity to opt-out of the calls. Callers must provide either a callback number for customers to opt-out or an automated interactive voice or keypad opt-out process. The FCC stressed, however, that callers can request consumer consent during an approved call. With consent, a caller may exceed the limited number of exempt calls within the stated period. And, because the TCPA does not concern calls made with live agents, callers may still make unlimited calls of that type.
The new caps will go into effect six months after the FCC's new rules are approved, which may be well into 2021. Callers subject to these restrictions must work now to implement compliance measures before the new call limits are enforced.
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