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Federal Deception Law: 6.3.6.1.4 Exceptions to the requirement of prior express written consent

There are two exceptions to the current requirement of prior express written consent for autodialed or prerecorded telemarketing calls to cell phones and other sensitive numbers. First, if the call is by or on behalf of a tax-exempt nonprofit, the caller’s prior express consent is required, but the consent need not be written.378 However, if the nonprofit caller is promoting a commercial party’s products, prior express consent is necessary.379

Federal Deception Law: 6.5.3.2.2 FCC nationwide do-not-call rule applies to “telephone solicitations”; comparison to company-specific do-not-call rule

The FCC’s nationwide do-not-call rule applies to any “telephone solicitation.”759 This term is defined as “the initiation of a telephone 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,” with exceptions for calls with the called party’s prior express invitation or permission, calls to parties with whom the caller has an established business relationship, or calls by or on behal

Federal Deception Law: 6.4.1 Introduction

The TCPA prohibits placing a call that uses an artificial or prerecorded voice to a residential telephone line without the called party’s prior express consent.628 When Congress adopted this provision, it found that:

Federal Deception Law: 6.5.3.3.3 Calls to businesses; personal relationships

The FTC’s Telemarketing Sales Rule exempts calls to businesses815 (with a partial exception for “toner phoner” calls).816 The FCC rule is limited to “residential telephone subscribers,”817 but the FCC has declined to interpret the rule to exclude home-based businesses.818 Whether a call to a home phone number that is also used for business purposes is a call to a “residential telephone subscriber,” as

Federal Deception Law: 6.5.3.4 Operation of the Do-Not-Call Rules

The FCC’s do-not-call rule prohibits any telephone solicitation to a residential telephone subscriber whose number is registered on the national do-not-call list.861 Similarly, the FTC’s Telemarketing Sales Rule (TSR) provides that it is an abusive telemarketing practice for a telemarketer to initiate, or for a seller to cause a telemarketer to initiate, an outbound telephone call to a person whose telephone number is registered on the list.862

Federal Deception Law: 6.8.3.1.5 Surveys

A true survey may not be an advertisement.1057 Nonetheless, the FCC has held that “[t]he TCPA’s definition of ‘unsolicited advertisement’ applies to any communication that advertises the commercial availability or quality of property, goods or services, even if the message purports to be conducting a survey.”1058 A number of decisions have followed this common sense ruling, holding that a fax that pitches a product or service in the guise of conducting a survey or providing information about

Federal Deception Law: 6.4.2.1 Scope

The TCPA’s prohibition applies to calls to “any residential telephone line.”639 A residential line that is also used for a home-based business can fall within this prohibition.640 An Eleventh Circuit decision suggests in dicta that a cell phone does not qualify as a residential line.641 In addition, the FCC’s Consumer and Governmental Affairs Bureau

Federal Deception Law: 6.5.2.2 FCC Company-Specific Do-Not-Call Rule

Like the FTC’s rule, the FCC’s company-specific do-not-call rule requires persons or other entities that make telemarketing calls725 to maintain company-specific do-not-call lists and honor do-not-call requests.726 “Telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is t

Federal Deception Law: 6.3.6.1.1 What calls constitute telemarketing?

The FCC regulation allows autodialed and prerecorded calls to cell phones only with the recipient’s prior express written consent if the call constitutes telemarketing or introduces an advertisement.331 The regulation defines “advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services.”332 A text message that leads the recipient to an advertisement “introduces” that advertisement.

Consumer Arbitration Agreements: 8.8.2.1 Overview

One approach when a term in an arbitration agreement is found to be unenforceable is to sever that term and enforce the rest of the agreement. The agreement may even include a term indicating that unenforceable terms should be severed—a so-called “severance” clause or provision. Note the distinction between a severance clause in the arbitration agreement and one in the agreement as a whole that could be interpreted as severing the arbitration requirement from the rest of the agreement if any aspect of the arbitration clause is found unenforceable.

Consumer Arbitration Agreements: 8.8.2.2.1 Introduction

Courts often cite to a federal preference in favor of arbitration when severing illegal terms from an arbitration agreement instead of invalidating the whole agreement.464 There are two issues with this justification. First, in Morgan v.