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What Consent is Required for Telemarketing Calls?

picture of someone's hands holding a cell phone image for ATDS blog post

Telemarketing or advertising calls made using an ATDS require prior express written consent (PEWC). However, both the FCC and courts intend the definition of PEWC to remain broad. A sale need not occur during the telephone call for it to be a telemarketing call or a call that introduces an advertisement.

Likewise, the TCPA qualifies dual-purpose calls (i.e. calls made for both non-solicitation and solicitation purposes) as solicitations. If a caller is attempting to establish a connection for a future sale, it is likely a telemarketing call. Regardless of whether the sale takes place during the call or in the future, these contacts still qualify as marketing.

PEWC is an authorization, in writing, that bears the signature of the consumer. It should clearly and conspicuously disclose that the person authorizes the seller to deliver or cause to be delivered telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice to a specified telephone number. Further, a seller must inform the consumer that he or she does not have to comply with an agreement.

An agreement must be in writing and include the consumer’s signature, but the format is flexible. The FCC recognized, pursuant to the E-SIGN Act, consent obtained via an “email, Web site form, text message, telephone keypress, or voice recording” is sufficient so long as the other requirements (e.g. mandatory disclosures, identification of the phone number, clear authorization by the person providing consent, etc.) are met.

What is an ATDS?

An ATDS is “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers”. The FCC has held that a predictive dialer also constitutes an ATDS. When determining whether a system is an ATDS, the FCC and courts often focus on whether it has “the capacity to dial numbers without human intervention”. For example, systems that require a human to click to dial a number do not qualify as automatic.

Protections Against Pre-Recorded Calls

Federal law provides strong protections for consumers against unsolicited pre-recorded calls.  These calls provide seemingly never-ending invasions of your privacy. Our North Carolina TCPA Attorneys handle cases dealing with harassing robocalls all over the state of North Carolina

The law protects against a number of unlawful communications, including junk faxes, spam text messages, and robocalls. The legislation states that “it shall be unlawful for any person within the United States to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party”. There is a similar rule against robocalls to cell phones.

Representation for TCPA Cases 

Our North Carolina TCPA Attorneys Edward Maginnis and Karl Gwaltney handle claims across the state. We offer free consultations to all victims and handle TCPA cases on a contingency basis. This means that you do not pay any attorneys’ fees unless and until we obtain a settlement on your behalf.

To discuss your TCPA robocalls claim, contact our firm at 919-526-0450 or send a message through our contact page.

Our firm handles cases throughout North Carolina, including Raleigh, Durham, Cary, Chapel Hill, Greenville, Fayetteville, Greensboro, and Wilmington.