Effective July 20, 2023, nonprofit organizations and others making non-commercial calls using an artificial or prerecorded voice (known as robocalls) to residential lines may make no more than three such calls to a particular residential line within any consecutive 30-day period without prior express consent of the called party and must give the called party the ability to opt out of any future calls they do not wish to receive.
These new requirements are part of regulations issued by the Federal Communications Commission (FCC) in response to the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence Act (the TRACED Act) passed by Congress in 2019.
Three Robocalls to Residential Landlines Per 30 days Are Exempt from the Prior Consent Requirement
The new FCC rules modify Telephone Consumer Protection Act (TCPA) regulatory exemptions for non-commercial robocalls and robocalls made by tax-exempt nonprofit organizations to residential landlines. These robocalls were previously allowed without prior express consent of the called party. Under the new rules, up to three such calls can be made in any consecutive 30-day period without prior express consent. Organizations that wish to exceed that limit may do so only by obtaining the prior express consent of the call recipient. Consent may be given orally or in writing. If consent has not been obtained through one of the three permissible robocalls, consent must be obtained through a live caller or some other method.
The new rules did not change the existing requirement to obtain prior express consent (again, oral or written) for any robocalls or autodialed text messages placed to wireless phone lines.
Opt-out Mechanisms Are Required
Under the new rules, every robocall made under the exemptions described above (among others) must give the call recipient the opportunity to opt out of receiving future robocalls to their residential landlines. Specifically, the robocall must include an automated, interactive voice- and/or key press-activated opt-out mechanism the called person can use to make a do-not-call request, including brief explanatory instructions on how to use the mechanism. All robocalls must state clearly at the beginning of the call the name of the person or entity responsible for the call. The automated opt-out mechanism and brief instructions must be provided within two seconds of providing the identification information. All robocalls must also clearly state the telephone number of the calling party during or at the end of the call. This telephone number must now permit any individual to make a do-not-call request during regular business hours. Additionally, when a robocall is left on an answering machine or voice mail service, the message must provide a toll-free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism. In all cases, the automated opt-out mechanism must automatically record the called person's number to the caller's do-not-call list. Organizations must honor a called person's do-not-call request within 30 days from the date of the request.
Robocall Procedures
Nonprofit organizations wishing to make robocalls to landlines and any other organization wishing to make non-commercial robocalls to landlines now must have a written policy, available upon demand, for maintaining a do-not-call list that complies with FCC rules. Personnel involved with robocalls must be informed of and trained on the existence and use of the do-not-call list. Do-not-call requests must be honored within 30 days of the request and for five years from the time the request is made.
Nonprofit organizations and organizations making non-commercial calls (including political calls) should also be aware that many states have their own robocall rules related to consent and disclosure requirements, calling hour restrictions, and state registration or licensing, as well as restrictions related to fundraising or other solicitations.
Have questions about your organization's use of robocalls or text messages? Connect with Venable's Nonprofit and Political Law Practices.