Federal Communications Commission FCC 12-21
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prerecorded message rule should turn, not on the caller’s characterization of the call, but on the purpose
of the message.
86
Again, we believe that the predominant purpose of a “Recovery Act” call, when it is
made by the consumer’s loan servicer, is compliance with the Recovery Act. In this instance, we find that
the home loan modification and refinance calls placed pursuant to the Recovery Act generally
87
are not
solicitation calls and do not include or introduce an unsolicited advertisement, when those calls are made
by the consumer’s loan servicer, because the primary motivation of the calling party is to comply with
that statute’s outreach requirements. We note, however, that should such calls be challenged as TCPA
violations because the primary motivation appears to be sending a telephone solicitation or unsolicited
advertisement rather than complying with the Recovery Act, we will consider the facts on a case-by-case
basis. Further, if a “Recovery Act” robocall is made to a wireless number, prior express consent, which
may be either oral or written, is specifically required pursuant to the Act.
88
32. Content and Form of Consent. With respect to written consent, the Commission has
indicated that the term “signed” may include an electronic or digital form of signature, to the extent such
form of signature is recognized as a valid signature under applicable federal or state contract law.
89
Under the FTC’s rules, prior express consent to receive prerecorded telemarketing calls must be in
writing.
90
The FTC’s rules require that the written agreement must be signed by the consumer and be
sufficient to show that he or she: (1) received “clear and conspicuous disclosure” of the consequences of
providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded
messages by or on behalf of a specific seller; and (2) having received this information, agrees
unambiguously to receive such calls at a telephone number the consumer designates.
91
In addition, the
written agreement must be obtained “without requiring, directly or indirectly, that the agreement be
executed as a condition of purchasing any good or service.”
92
The FTC has determined that written
agreements obtained in compliance with the E-SIGN Act
93
will satisfy the requirements of its rule, such
as, for example, agreements obtained via an email, website form, text message, telephone keypress, or
86
Id. at 14098, para. 141; see also 42 U.S.C. § 227(a)(4) (providing that telephone solicitation means the initiation
of a telephone call for the purpose of encouraging the purchase or rental or, or investment in, property, goods, or
services, which is transmitted to any person, but such term does not include a call or message (A) to any person with
that person’s prior express invitation or permission, (B) to any person with whom the caller has an established
business relationship or (C) by a tax exempt nonprofit organization).
87
Nothing in the record indicates that a Recovery Act call should include a solicitation to submit a credit card
application or to invest in mutual funds.
88
See 47 U.S.C § 227(b)(1)(A).
89
2003 TCPA Order, 18 FCC Rcd at 14043-44, para. 44 n.158.
90
16 C.F.R. § 310.4(b)(v)(A) (safe harbor requirements). We note that that the FTC’s TSR provisions do not cover
autodialed calls. The TCPA, however, provides that autodialed and prerecorded calls are subject to its restrictions.
47 U.S.C.§ 227(b)(1).
91
16 C.F.R. § 310.4(b)(v)(A)(i), (iii), (iv).
92
16 C.F.R. § 310.4(b)(v)(A)(ii).
93
Congress enacted the Electronic Signatures in Global and National Commerce Act (E-SIGN Act) to “facilitate the
use of electronic records and signatures in interstate or foreign commerce” by granting legal effect, validity, and
enforceability to electronic signatures, contracts, or other records relating to transactions in or affecting interstate or
foreign commerce. 15 U.S.C. § 7001 et seq. (preamble); see 15 U.S.C. § 7001(a). The E-SIGN Act defines an
“electronic signature” as “an electronic sound, symbol, or process attached to or logically associated with a contract
or other record and executed or adopted by a person with the intent to sign the record.” 15 U.S.C. § 7006(5). It
further defines an “electronic record” as “a contract or other record created, generated, sent, communicated,
received, or stored by electronic means.” 15 U.S.C. § 7006(4).