At the end of 2019 Congress passed the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act) which made changes to the Telephone Consumer Protection Act (TCPA) and associated regulations. A portion of the TRACED Act went into effect March 29, 2021, and the remainder went into effect July 20, 2023.
Effective March 2021
Revised 47 CFR § 64.1200(a)(1)(iv) to state that a person will not be liable for violating the prohibition against placing calls to a wireless number if a) the wireless number has been ported from wireline service, b) the call made is a voice call, c) the call was not knowingly made to a wireless number, d) the call was made within 15 days of the number being ported from wireline to wireless service, and [newly added] e) the call was exempted by the newly added § 64.1200(a)(9), discussed further below.
47 CFR § 64.1200(a)(9) generally exempted calls made by a) a package delivery company to notify a consumer about a delivery, b) an inmate collect call service provider following an unsuccessful collect call, c) a financial institution, or d) healthcare providers, hospitals, emergency care centers, medical physician or service offices, poison control centers, and other healthcare professionals. These are generally exempted provided that the call is not charged to the called person or counted against the called person’s plan limits on minutes or texts. The term “call” includes a text message, including a short message service (SMS) call.
Calls made by any financial institution are exempted under § 64.1200(a)(9) provided that the following conditions are met: 1) calls must be sent only to telephone number provided by the customer, 2) calls must state the name and contact information of the financial institution, 3) calls are strictly limited to those for the following purposes: transactions and events that suggest a risk of fraud or identity theft; possible breaches of the security of customers’ personal information; steps consumers can take to prevent or remedy harm caused by data security breaches; and actions needed to arrange for receipt of pending money transfers, 4) calls must not include any telemarketing, cross-marketing, solicitation, debt collection, or advertising content, 5) calls must generally be one minute or less in length for voice calls or 160 characters or less in length for text messages, 6) may initiate no more than three calls per event over a three-day period for an affected account, 7) must offer in each message an easy means to opt out, and 8 )must honor opt-out requests immediately.
Effective July 2023
Revised 47 CFR § 64.1200(a)(3)(ii),(iii),(iv) to indicate that for calls not made for a commercial purpose ((a)(3)(ii)), made for a commercial purpose but does not include advertising ((a)(3)(iii)), or made on behalf of a tax exempt organization ((a)(3)(iv)), the caller make no more than three calls within any consecutive 30-day period to the residential line and honor the called party’s request to opt out of future calls.
Revised 47 CFR § 64.1200(a)(3)(v) that for calls delivering health care messages ((a)(3)(v)) the caller makes no more than one call per day to each patient’s residential line, up to a maximum of three calls combined per week to each patient’s residential line and honors the called party’s request to opt out of future calls.
Revised 47 CFR § 64.1200(b)(2) that for all artificial or prerecorded voice telephone messages made to residential telephone subscribers (including the exemptions listed above in (a)(3)(ii)-(v)) that during or after the message, state clearly the telephone number of such business which must permit any individual to make a do-not-call request during regular business hours. The telephone number provided may not be a 900 number or other for which charges exceed local or long-distance charges.
Revised 47 CFR § 64.1200(b)(3) that for all artificial or prerecorded voice telephone messages made pursuant to an exemption under (a)(3)(ii)-(v) or includes an advertisement and is delivered to a residential telephone line that an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request be provided.
Revised 47 CFR § 64.1200(d) such that no person may make a call for telemarketing purposes (or artificial or prerecorded-voice telephone call pursuant to an exemption under (a)(3)(ii)-(v)) to a residential telephone subscriber unless the caller has instituted procedures for an internal do-not-call list. The specific procedures in (d)(1) – (d)(6) were also revised to state that anyone making a call for telemarketing purposes (or artificial or prerecorded-voice telephone calls pursuant to an exemption under (a)(3)(ii)-(v)):
- Must have a written policy for maintaining a do-not-call list. – Revised 47 CFR § 64.1200(d)(1)
- Must be informed and trained in the existence and use of the do-not-call list. – Revised 47 CFR § 64.1200(d)(2)
- Upon receiving a request not to receive calls, must place the subscriber’s name and telephone number on the do-not-call list at the time the request is made. Must also honor a subscriber’s request within a reasonable time, not to exceed 30 days. The consumer’s request may not be shared without the consumer’s prior express permission. – Revised 47 CFR § 64.1200(d)(3)
- Must provide the called party with the name of the caller, the name of the person on whose behalf the call is being made, and a telephone number (not a 900 number or similar) or address at which the caller may be contacted. – Revised 47 CFR § 64.1200(d)(4)
- Requests shall only apply to those on whose behalf the call is made, and not their affiliates, unless the consumer reasonably would expect them to be included considering who the caller is and (for telemarketing calls) what is being advertised. – Revised 47 CFR § 64.1200(d)(5)
- Must maintain a record of a consumer’s request not to receive further calls. A do-not-call request must be honored for 5 years from the time the request is made. – Revised 47 CFR § 64.1200(d)(6)
As always, if you have any questions about the changes to the TCPA, feel free to reach out to us on the Hotline.