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Federal Deception Law: 6.3.6.5.2 What methods of revoking consent are reasonable?

The FCC’s 2015 declaratory ruling, upheld by the D.C. Circuit,548 makes clear that any statement in which “the called party clearly express[es] his or her desire not to receive further calls” is sufficient to show revocation.549 To assess whether any particular means of revocation used by a consumer is reasonable, the FCC stated that it would:

Federal Deception Law: 6.3.6.5.4 Can the consumer’s manner of revoking consent be limited by contract?

A related issue regarding revocation of consent is whether the method of revoking consent can be limited or controlled by the terms of a contract in which consent was granted. One district court decision held that a contract cannot impose a requirement that revocation of consent be in writing.600

A number of statements in the FCC’s 2015 order strongly suggest the view that the creditor cannot impose contractual terms that dictate a particular manner of revoking consent. The FCC stated:

Federal Deception Law: 6.3.6.5.5 Partial revocation of consent

A 2017 Eleventh Circuit decision holds that, just as a consumer can provide limited consent to receive robocalls, a consumer can also partially revoke consent.608 In the case before it, the consumer had attempted to revoke consent to receive debt collection calls during her working hours. The court held that she had the right to do so and remanded for a jury determination of whether her instructions to the creditor were clear enough.

Federal Deception Law: 6.3.6.6 No Established Business Relationship Exception

In contrast to the TCPA provisions dealing with junk faxes609 and the nationwide do-not-call rule,610 there is no exception for autodialed or prerecorded calls to cell phone numbers of persons with whom the caller has an established business relationship.611 The consent requirements described in the preceding subsections apply regardless of the existence of an established business relationship.

Federal Deception Law: 6.3.7 Special Rules for Calls to Collect Debts Owed to or Guaranteed by the United States (Struck Down as Unconstitutional)

On November 2, 2015, the TCPA was amended by an appropriations bill (“the Budget Act”) to exempt calls “made solely pursuant to the collection of a debt owed to or guaranteed by the United States” from the prohibition against making autodialed or prerecorded calls to cell phones without the consent of the called party.613 A parallel provision created a similar exemption from the statute’s restrictions on prerecorded calls to residential lines.614 The Budget Act also gave the FCC the authority to

Federal Deception Law: 6.3.8 Investigating and Documenting TCPA Cell Phone Cases

Prior express consent is often the definitive issue in a robocall case. The consumer may have provided a cell phone number at some point in the relationship with the caller or the caller’s predecessor. Or there may have been an obscure provision in a document the consumer signed that the caller will argue amounts to prior express consent to receive autodialed and prerecorded calls. The consumer should be questioned in detail about how the caller might have gotten the consumer’s cell phone number and should be asked to search for any documents that might constitute consent.

Federal Deception Law: 6.4.3 Definitions of “Advertisement” and “Telemarketing”

Given all the exceptions to the FCC’s restriction on prerecorded calls to residential lines, its primary application (at least until the numerical limits on exempted calls went into effect on July 20, 2023)671 has been to calls that “include or introduce an advertisement or constitute telemarketing.”672 The rule defines “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or s

Federal Deception Law: 6.4.5 Required Disclosures for All Prerecorded Calls

The FCC has promulgated a number of requirements for prerecorded or artificial voice calls.695 These requirements are phrased to apply to all such calls, even if the FCC’s rules exempt them fully or partially from the TCPA’s other restrictions. Thus, for example, the rules apply to prerecorded debt collection calls and other non-telemarketing calls to residential lines.

Federal Deception Law: 6.5.3.2.5 Types of called parties protected; “residential telephone subscriber”

The FTC’s do-not-call rule prohibits any call to a person whose telephone number is on the do-not-call list, without limiting this prohibition to land lines or residential lines, so it applies to cell phones.791 However, calls to businesses are generally excluded from the TSR.792 A court rejected a telemarketer’s claim that the plaintiff had to prove that its calls were made to the person who originally r

Federal Deception Law: 6.5.3.3.2 Exemption for tax-exempt nonprofit organizations

The FTC exempts outbound calls to induce charitable contributions from its nationwide do-not-call rule,807 but there is no similar exemption from its company-specific do-not-call rule.808 Neither the FTC’s nationwide do-not-call rule nor its company-specific do-not-call rule exempts calls from for-profit solicitors that seek to sell goods or services.

Federal Deception Law: 6.5.3.3.4 Established business relationship

Both the FCC’s821 and FTC’s822 nationwide do-not-call rules exempt calls made to someone with whom the company has an “established business relationship.” Such a relationship lasts for eighteen months after the consumer’s last purchase or transaction with the company, or for three months after the consumer makes an inquiry or application regarding the company’s products or services,823 unle

Federal Deception Law: 6.6.2.1 FTC Telemarketing Sales Rule (TSR) Requirements

The FTC Telemarketing Sales Rule (TSR) requires that, in any outgoing call to induce the purchase of goods or services, the telemarketer must make prompt oral disclosure of the seller’s identity, the call’s purpose (to sell goods or services), and the nature of the goods or services.880 Callers seeking charitable donations must make prompt oral disclosure of the identity of the charitable organization on behalf of which the call is made and that the purpose of the call is to solicit a charitable donation.

Federal Deception Law: 6.6.3 Abandoned Calls

One problem with automatic dialing systems is that they lead to abandoned calls, because the called party may answer the call at a time when all of the solicitors are still on other calls. This may happen when a telemarketer uses automatic dialing equipment (a predictive dialer) that calls too many numbers for the employees of the telemarketing company to handle. Consumers rightfully complain that they rush to answer the phone, only to find no one at the other end of the call.890

Federal Deception Law: 6.6.3a Line Seizure

Pursuant to a mandate in the TCPA,912 the FCC has adopted a rule requiring that automatic dialing terminal equipment that delivers a recorded message must release the called party’s phone line within five seconds of the called party hanging up.913 In 2010, the FCC queried whether it should adjust the five-second limit to be three seconds.914