A new Federal Communications Commission (FCC) rule was supposed to go into effect on January 27, 2025, but at the last minute on January 24, 2025, the FCC postponed the effective date of the rule pending judicial review. Later on that same day, the United States Court of Appeals for the 11th Circuit vacated implementation of the rule, finding that the FCC exceeded its statutory authority by adopting the rule. 

What was this rule about? 

If the rule had gone into effect, it would have implemented a one-to-one consent requirement under the Telephone Consumer Protection Act (TCPA) for calls and texts made to a consumer. The TCPA has long required prior express written consent from the consumer before a person or business could place telemarketing calls or text messages using an automatic telephone dialing system or a prerecorded call or text to consumers. The rule would have required one-to-one consent from a consumer for each robocall or robotext from a seller. Currently, a consumer can offer consent to an online marketer or comparison shopping site to multiple parties who might be using those sites to market their good and services. The FCC referred to this as the “lead generator loophole” and sought to implement the one-to-one consent rule to close this “loophole.” For right now, this one-to-one consent rule is not in effect, and the “old” rules remain.

What are the Do Not Call laws?  

The news about the new FCC rule, as well as the delayed-and-then-vacated implementation of it, generated an increase in calls to the WRA Legal Hotline about the Do Not Call laws. Most callers were just checking in to confirm that nothing had changed, and some wanted a quick refresher on the Do Not Call laws to make sure they were in compliance. 

If a person or company plans to use telephone solicitation to try to create business, they have to register as a telephone solicitor. A telephone solicitation is another way of saying “cold calling” where a seller communicates with a consumer and offers or promotes the sale of consumer goods or services to a consumer, for example, a real estate agent calling or texting consumers to see if they would like to list their property with the agent. The rules apply to both calling and texting. 

Registration is through the Department of Agriculture, Trade and Consumer Protection (DATCP). Registration takes place on an annual basis, with the registration year beginning on December 1 and ending on November 30. A telephone solicitor can register online or by mailing in a completed telephone solicitor registration form to DATCP. 

To register as a telephone solicitor with DATCP, the person or company must be able to demonstrate they are subscribed to the National Do Not Call Registry by providing their subscription account number provided by the Federal Trade Commission (FTC). A telephone solicitor must synchronize their phone lists with an updated version of the registry at least every 31 days.

The initial fee to register with DATCP as a telephone solicitor is $700, and the renewal fee is $500. This amount can be paid at the time of registration and with the annual renewal, or it can be paid quarterly though a 20% late fee applies if the quarterly payments are not timely. The fee is not prorated, and the entire annual fee is due regardless of the date of registration. Additionally, a telephone solicitor may pay $75 per phone line if the total number of phone lines used is four or more. 

A telephone solicitor may not call numbers listed on the Do Not Call Registry. A telephone solicitor may not use a prerecorded message to encourage a customer to purchase goods, property or services without first obtaining written consent from the customer. A telephone solicitor may not contact a customer who has notified the solicitor that the customer does not want to receive telephone solicitations even if that person is not on the Do Not Call Registry. A telephone solicitor cannot use caller-ID blocking technology.

A telephone solicitor must keep certain records and provide them to DATCP pursuant to any investigation of potential violations of the Do Not Call laws. The records include telephone numbers contacted, any affirmative requests from a consumer that prompted a call or text, copies of scripts and promotional materials, documents related to prizes, and records of staff or associates who would be making telephone solicitations.

Companies that illegally call numbers on the National Do Not Call Registry or place an illegal robocall can currently be fined up to $50,120 per call.

Are there calls that can be made to someone on the Do Not Call Registry? 

The rules allow:

• Political calls
• Charitable calls
• Debt collection calls
• Purely informational calls
• Surveys

But these calls cannot also include a sales pitch.