July 31, 2023
By Barrie Charapp Beaty
Over the years, we have written various articles about the Telephone Consumer Protection Act and which of the TCPA rules affect dealers. This article provides important rule changes issued by the FCC in January 2023, which take effect on July 20, 2023. The new update changes the rules for prerecorded informational calls made to customers’ residential landlines.
Limitations on Artificial or Prerecorded Voice Calls to Residential Lines
Since 2013, the FCC has required that prior express written consent be required for all pre-recorded calls, which introduce an advertisement or constitute telemarketing, to residential landlines, but those prerecorded calls for informational purposes that did not constitute telemarketing or contain advertisements could be made without consent to residential landlines. The rule on prerecorded informational calls has changed. The new rule in effect on July 20, 2023, states that prerecorded informational voice calls, which do not constitute advertisements or telemarketing calls, can be made to residential lines without consent but are now limited to only 3 artificial or prerecorded voice calls within any consecutive 30-day period.
The FCC has instituted extensive customer opt-out requirements for prerecorded calls to residential landlines that dealers will be required to institute by July 20, 2023. Under the new rules, the FCC requires that any prerecorded call, those with that contain advertisements as well as informational messages, made to a customer’s residential landline, must contain your dealership’s phone number so the customer can make a do-not-call request to the dealer during regular business hours. In addition to the phone number requirement for prerecorded advertisements or informational calls made to customers’ residential landlines, the FCC also now requires an automated, interactive voice and/or key-press activated opt-out mechanism so the customer can make an automated “do-not-call” request. This opt-out mechanism must include instructions to the customer within 2 seconds of providing the dealership’s identity at the beginning of the prerecorded call. If the customer opts out from receiving prerecorded calls from your dealership with the mechanism, it must automatically record the customer’s number to your dealership’s do-not call list and immediately end the call. Any prerecorded message left on a customer’s residential line’s voicemail must contain a toll-free number so the customer can call back and be directly connected to the opt-out mechanism.
Your dealership is now required to establish a process for maintaining a list of all customers who have opted out of receiving prerecorded phone calls to residential landlines, including those calls for informational purposes. The FCC requires the following to be adopted for your dealership’s do-not-call list.
- A written policy, available on demand, for maintaining your dealership’s do-not-call list.
- Existence of personnel training on your dealership’s do-not-call list.
- Dealers must record all do-not-call requests with the customer’s name, if provided, and telephone number at the time the do-not-call request is made from the customer with a residential landline. The customer’s request to be on the dealer’s do not call list should be done no later than 30 days from the request. If you use a 3rd party to record and maintain such do-not-call requests for your dealership, you will be liable for any failure to honor the do-not-call request. Additionally, to use a 3rd party to record and maintain such do-not-call requests, you need to obtain the customer’s prior express permission to forward the customer’s request to that 3rd
- For all prerecorded phone calls to residential lines, including informational calls, your dealership must identify itself by name and telephone number or address where the dealership may be contacted.
- If the customer opt-outs of one of your dealerships from receiving prerecorded messages, it would be best practices to opt that customer out of receiving messages from any affiliated dealerships.
- You must maintain a record of the residential landline customer’s request not to receive prerecorded calls from your dealership, which is to be honored for 5 years from the time the request is made.
Record Keeping Requirements
Dealers are required to keep records as to the prerecorded information calls to customers with residential landlines so that your calls do not exceed the numerical limits (3 prerecorded calls within a consecutive 30-day period). If the customer gives you oral or written consent to exceed those TCPA limitations, records shall be kept as to the customer’s consent. Dealers will need to keep records and track the do-not-call requests made through the opt-out mechanism or requests made directly to the dealership, so that residential landline customers that do not wish to have prerecorded phone calls from the dealership do not receive them in the future.
Best Practices for Dealers
We understand that most dealers do not use prerecorded messages in telemarketing calls. Some dealers may use prerecorded messages to advise customers of service appointments or the status of their vehicle in for service. Previously, these calls were able to be made to residential landlines without consent, but those without consent are now limited to 3 within a consecutive 30-day period. As we have counseled in the past, dealers will want to have prior express written consent from every customer. The express written consent gives your dealership a record of the customer’s consent. The customer must sign the prior express written consent, specifically indicating to the business that it is permitted to call and include the telephone number for which the consent is given. The consent must disclose that the customer agrees to receive informational and telemarketing calls that use an automatic telephone dialing system or that are prerecorded. Additionally, even with express written consent, the rules have the requirements to allow for opt-outs for any prerecorded call to a customer’s residential landline. If at any time the customer decides to opt-out, you need to make sure that the customer’s number is on the do-not-call registry kept by the dealership. Per the FCC requirements, you need to have a plan in place for that registry.