cases in this area highlight the distinction made between marketing and non-marketing communications. Calls and text messages received by an unintended recipient might result in an impermissible disclosure of protected health information and require breach notification. See July 10, 2015, FCC Ruling cited below for more details on compliance with the healthcare treatment exception. TCPA Declaratory Ruling and Order. On July 10, 2015, the FCC released its ruling with clarification of a number of TCPA issues including the definition of autodialer, liability for calls made to reassigned phone numbers, a consumer right to revoke consent by any reasonable means, and new exceptions for financial and healthcare related calls. The FCC invoked its authority under the TCPA to exempt from the consent requirement various “free to end user” communications (no charge to recipient of call) that are “pro consumer messages“ made by certain entities regarding time sensitive financial information and health treatment related messages. FCC Adopts New TCPA Rules for Lead-Generated Communications. Marketers that solicit sales or advertise products or services using “robocalls” or “robotexts” (i.e., calls or texts that are initiated using an “automatic telephone dialing system” or voice calls made using an artificial or prerecorded voice) will need to comply with a new set of rules from the Federal Communications Commission (FCC). In a December 2023 order, the FCC claims to have closed the “lead generator loophole” by adopting rules requiring marketers to obtain consumer consent to receive robocalls or robotexts “one seller at a time.” Once the rules take effect, businesses and websites that generate leads, such as comparison- shopping websites, will not be permitted to obtain a single consent to cover regulated calls or texts from multiple sellers. Rather, “prior express written consent” must be obtained separately for each identified seller. The new rules also require that “one-to-one” consent must come after a “clear and conspicuous” disclosure to the consenting consumer that they will get robocalls or robotexts from the designated seller. Additionally, the rules will require robocalls and robotexts that result from consumer
46
Made with FlippingBook - Online Brochure Maker