The Current Telephone Consumer Protection Act Landscape & What You Need to Know to Avoid Liability National Bar Association Commercial Law Section Corporate Counsel Conference 1

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Congress in 1991 recognized the legitimacy of telemarketing but stated that unrestricted telemarketing could be an invasion of privacy and a risk to public safety. Congress provided greater protection for wireless users, who may be charged per call but who make up an increasing segment of consumer phones. The FCC’s rules and rulings attempt to balance an individual’s right to privacy with the legitimate business interests of telemarketers. Rules at 47 C.F.R. § 1200 et seq. 3

Both the FTC and the FCC regulate telemarketers. The FCC’s jurisdiction covers all telemarketers, while the FTC’s jurisdiction does not cover common carriers, banks, insurance companies, airlines, or intrastate telemarketers. Congress required the FCC to “maximize consistency” and harmonize FCC’s rules with the FTC’s analogous telemarketing rules in a way that reduces confusion about telemarketers’ obligations and does not increase compliance burdens for most telemarketers. 4

Telemarketing via residential landline and wireless phone calls as well as text messages Use of autodialers or Automated Telephone Dialing Systems (“ATDS”) Prerecorded voice calls, including calls using an artificial voice Do-Not-Call Registries Junk Faxes 5

Telemarketing: the “call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” o Focus on purpose of the call o Offer of “free” services is considered telemarketing. Automatic Telephone Dialing System (“ATDS”): “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” o Focus on capacity at the time the call is made o FCC has ruled that a predictive dialer is an ATDS o Court: Generate a number – Dominguez v. Yahoo!, Inc. No , Slip Op. (E.D. Pa. Mar. 20, 2014) 6

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