New rules from the Federal Communications Commission are scheduled to go into effect July 20, 2023 that govern artificial voice or pre-recorded non-commercial and non-telemarketing calls made to landline telephones. Non-telemarketing calls include debt collection calls.
Artificial voice or pre-recorded calls include calls where a recorded message is deployed asking the recipient to hold for a live agent, etc.
The new rules limit the number of such calls to three within a 30-day period, unless the caller has the called party’s prior express consent to exceed that limit, and requiring callers to provide specific methods for called parties to opt out of receiving such calls.
Both the statutory provision and the new rule are phrased as applying per caller, so that one debt collector calling the same consumer about multiple debts is limited to a total of three calls for all the debts it is collecting from the same consumer.
Non-commercial calls include calls not made for a commercial purpose, such surveys, polls, or market research calls, and non-telemarketing calls are those where there are no advertisements or solicitation of goods and services, such as debt collection.
To opt out, consumers must be able to either (1) dial a telephone number provided in the message to make their do-not-call request or (2) allow the called party to use an automated, interactive voice or key-press activated opt-out mechanism (ie, press “1” or say “stop” to no longer receive these calls).
These new restrictions were adopted pursuant to a 2019 TCPA amendment, called the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (TRACED Act). The TRACED Act requires the FCC to place a numerical limit on calls made pursuant to any of its exemptions. 47 U.S.C. § 227(b)(2)(I). The new rules were finalized in 2021 at 86 Fed. Reg. 11,443 (Feb. 25, 2021), and on January 20, 2023, the FCC made a correction to the new rule and on the same Federal Register page in a separate notice announced a July 20, 2023, effective date. See 88 Fed. Reg. 3668 (Jan. 20, 2023). The FCC announced the new rule and explained its rationale on December 30, 2020. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 355 F.C.C. Rcd. 15,188, 2020 WL 7873750 (F.C.C. Dec. 30, 2020).
While the new rules apply only to calls involving a pre-recorded or computer-generated voice, they are stricter than the limits applicable under the Fair Debt Collection Practices Act. While the FDCPA prohibits "[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number," 15 U.S.C. §1692d(5), the statute itself does not place a numerical limit on calls. Regulation F creates a presumption that seven attempted calls per week per account in collection-or one telephone conversation every seven days-is not an FDCPA violation. 12 C.F.R. § 1006.14(a)(2).
The FCC's new TCPA limit on prerecorded debt collection calls limits them to three such calls per thirty-day period. In addition, the new TCPA limit applies per caller, while the Regulation F limit is per account in collection. Unlike the new FCC rule, Regulation F allows the same collector to make additional calls for each additional debt it is collecting from the same consumer. Moreover, the new TCPA prohibition is a strict standard, and there is no need to show intent or anything other than the fact that the caller exceeded the numerical limit.
The FDCPA and Regulation F require debt collectors to stop contacting consumers when they send a written cease communications notice or ask debt collectors to stop contacting them in a particular way (e.g., "stop calling me"). The new FCC rules require an interactive, automated opt-out system. This improves the usability of the opt-out right for prerecorded debt collection calls to residential lines.
Under the new rules, callers must also:
Maintain a written do-not-call list policy that is available on demand.
Train personnel on the existence and use of the do-not-call list.
Record and honor do-not-call requests within a “reasonable time” (defined as not exceeding 30 days).
Provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted.
Honor do-not-call requests made to affiliated entities if the called party would reasonably expect such a request to apply.
Maintain a record of do-not-call requests for five (5) years