When the original Telephone Consumer Protection Act (TCPA) was passed in 1991, it contained general exceptions for several categories of calls. Not-for-profit organizations, market research and surveying companies and politicians were held to lower standards than commercial telemarketers. This is still true in many cases, but – as several not-for-profit organizations have discovered recently – when it comes to mobile phones, they are as liable as any commercial organization.
This is particularly true when a call is either dialed with an auto, predictive or preview dialer, or when a prerecorded outbound message (a/k/a “robocall”) is used. A recent case underscores that many political organizations in particular are misunderstanding the recent updates to the TCPA that bar them from robocalling mobile phones without permission.
A man in Saugus, California recently won a $560 judgment against a former school board candidate who allegedly contacted the man via his mobile phone by robocall before last November’s election, according to the Santa Clarita Valley Signal. Robert Arkow maintains that he did not give the candidate, Chris Trunkey (who lost the election) permission to call his cell phone. Arkow also noted that the robocalls did not include explicit information regarding how to stop future calls, which is another violation of the federal legislation governing telemarketing.
In 2012, the Federal Communications Commission (FCC (News - Alert)), noting a rise in complaints about political robocalling, issued an enforcement advisory underscoring the rules of political calling.
“Prerecorded voice messages and autodialed calls (including autodialed live calls, prerecorded or artificial voice messages, and text messages) to cell phones and other mobile services such as paging systems are prohibited, subject to only two exceptions: 1) calls made for emergency purposes, and 2) calls made with the prior express consent of the called party,” wrote the FCC.
In essence, when it comes to mobile phones, not-for-profit organizations must follow precisely the same rules as commercial telemarketers. Any organization, commercial or not-for-profit, maintaining that it has the permission of callers must be able to prove it or be subject to fines.
Americans are increasingly less-than-thrilled with robocalls. Barring those offering vital information such as school closings, prescription refills and appointment reminders, robocalls are considered by many to be a growing problem. The FCC recently altered the rules of automated outbound calling recently, extending the permission rule to all telephones for commercial entities. This means that companies can no longer place automated outbound calls based only on an “established business relationship,” but instead must attain permission through paper or electronic means, which can include Web forms, a telephone key press, or email.
Trunkey disputes the award in Arkow’s favor.
“I received the court’s judgment in favor of Mr. Arkow for $560,” said Trunkey in an email to the Santa Clarita Valley Signal. “That ruling is automatically stayed pending appeal. As Mr. Arkow filed suit for $3,000, the court dismissed the bulk of his case, and I don’t believe the judge ruled correctly on the one claim it did allow.”
Unless Mr. Trunkey can produce evidence that he has Arkow’s explicit permission to be called, he believes wrong.