I had a conversation with Lloyd Collier, Senior Attorney, Telecommunications Consumer Division with the Federal Communications Commission, regarding whether a nonprofit sales call (e.g. symphony tickets by a nonprofit symphony), would be allowed with oral or written prior express consent to cell phones, or whether it was telemarketing such that it would be allowed only with prior express written signed consent. Collier said that the regulation allows nonprofit calls (including nonprofit telemarketing calls) with oral or written prior express consent.
The confusion stems from slight differences in the TCPA regulations and the FCC’s commentary on those regulations. The TCPA says no person or entity may:
Initiate, or cause to be initiated, any telephone call that includes or introduces an advertisement or constitutes telemarketing, using an automatic telephone dialing system or an artificial or prerecorded voice, to any of the lines or telephone numbers described in paragraphs (a)(1)(i)-(iii) of this section, other than a call made with the prior express written consent of the called party or the prior express consent of the called party when the call is made by or on behalf of a tax-exempt nonprofit organization, or a call that delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 C.F.R. § 160.103.
47 C.F.R. § 64.1200(a)(2) (emphasis added).
Thus, TCPA regulations provide that prerecorded advertisement or telemarketing calls to cell phones, made by or on behalf of a non-profit organization, are only allowed with prior express oral or written consent.
The FCC issued an order changing the express consent standard required for commercial entities to send prerecorded or text solicitations or predictive-dialed calls to cell phones. 27 FCC Rcd 1830 (Feb. 15, 2012).
Effective October 16, 2013, telemarketing calls to cell phones sent using an ATDS are allowed only with prior express written signed consent. Id. at 1839-1840.
However, the FCC commentary stated:
while we revise our consent rules to require prior written consent for autodialed or prerecorded telemarketing calls, we maintain the existing consent rules for non-telemarketing, informational calls, such as those by or on behalf of tax-exempt non-profit organizations, calls for political purposes, and calls for other noncommercial purposes, including those that deliver purely informational messages … such calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either written or oral consent if made to wireless consumers and other specified recipients.
Id. at 1841 (emphasis added).
So, the FCC’s commentary states that the rule leaves unchanged the FCC’s restrictions on non-telemarketing prerecorded messages by nonprofits. 27 FCC Rcd 1830, 1831. The rule specifically provides that non-telemarketing or advertising (i.e. political, nonprofit or information) prerecorded or text messages to cell phones are permitted with oral or written express consent. Id.
The TCPA regulations and the FCC’s commentary seem to be inconsistent with each other. While the regulations provide that prerecorded advertisement or telemarketing calls to cell phones, made by or on behalf of a nonprofit organization, are allowed with prior express oral or written consent, the FCC’s commentary states that only non -telemarketing or advertising (i.e. political, nonprofit or information) prerecorded or text messages to cell phones are permitted with prior express oral or written consent.
Collier said it is the language of the regulation that controls, not the inconsistent commentary.