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The Alarm Industry Communications Committee (AICC) is interested in determining the extent to which alarm companies use robocalling for telemarketing purpose, apart from calls made to verify alarms or service appointments. Please advise us if your company engages in telemarketing as a way to gain customers and/or sell new products and services to existing customers. Email Lou at Ltfiore@aol.com

Robocall is a term for an automated phone call that uses both a computerized autodialer and a computer-delivered pre-recorded message. Robocalls are often associated with political and telemarketing phone campaigns, but can also be used for public-service or emergency announcements.

In its February 15, 2012 Robocall Order, the FCC adopted several new requirements for using robocalls, including but not limited to rules that:

· Require telemarketers to obtain prior express written consent from the consumer for calls to residential or wireless numbers, including by electronic means such as a website form, before placing a robocall to them;

· Eliminate the “established business relationship” exemption to the requirement that telemarketing robocalls to residential wireline phones occur only with prior express consent from the consumer;

· Require telemarketers to provide an automated, interactive “opt-out” mechanism during each robocall so that consumers can immediately tell the telemarketer to stop calling; and,

· Strictly limit the number of abandoned or “dead air” calls that telemarketers can make within each calling campaign.

AICC filed comments in the Robocall rulemaking in May 2010 to try to protect certain alarm company uses of robocalling, and indeed the FCC did adopt final rules that preserve certain practices. In particular, the FCC did not change current requirements for prerecorded messages that are non-telemarketing, informational calls, such as calls by or on behalf of tax-exempt non-profit organizations, calls for political purposes, and calls for other noncommercial purposes, including those that deliver purely informational messages such as school closings. In particular, FCC Rule Section 64.1200(a)(3) provides certain exceptions for “informational calls”, as follows:

(3) [Entities may not] Initiate any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call;

(i) Is made for emergency purposes;

(ii) Is not made for a commercial purpose;

(iii) Is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing;

(iv) Is made by or on behalf of a tax-exempt nonprofit organization; or

(v) Delivers a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, 45 C.F.R. § 160.103.

Alarm companies that use robocalls to try to reach customers to verify an alarm (after initial attempts by a live operator) should be able to continue such practice because it would appear to qualify as a call made for emergency purposes, and not a call made for a commercial purpose, under the above exceptions of Rule Section 64.1200(a)(3). Indeed, the FCC’s Order specifically states that “our changes also do not affect messages sent to consumers to alert them to emergency situations.” These permitted informational calls do not require prior written consent if made to a residential landline phone, and require only oral consent if made to a wireless phone (although certain non-telemarketing calls to wireless phones may still require written consent under the Telephone Consumer Protection Act).

Calls that furnish information other than alarm verification may qualify as informational calls under the “non-commercial purpose” exception, if no product is being sold or advertised. For example, confirmation of a service call or a notice of system testing should qualify. Paragraph 26 of the Robocall Order differentiates “service calls” from restricted telemarketing calls. Likewise, the FCC has determined that debt collection calls are not telemarketing and thus do not require prior consent. But any alarm company using robocalls to market products and services to its customers will no longer be able to do so under the “established business relationship” exception that had previously allowed such calls, and instead will now have to obtain prior written customer approval under the new rules.

A consumer’s written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer: (1) received “clear and conspicuous disclosure” of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates. In addition, the written agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.” Finally, should any question about the consent arise, the seller will bear the burden of demonstrating that a clear and conspicuous disclosure was provided and that unambiguous consent was obtained. For these reasons, it is advisable to make any signed consent a separate document rather than a paragraph added to the service agreement. The FCC has ruled that “written consent” can also be obtained via an email, website form, text message, telephone keypress, or voice recording that would be in compliance with the E-SIGN Act.

The FCC is requiring the switch over to written consent for telemarketing, and sunsetting the “established business relationship” exception, over a twelve-month period that will commence upon publication of OMB approval of the new Robocall rules in the Federal Register. However, companies have only a 90-day implementation period for the automated, interactive opt-out mechanism for telemarketing calls, again commencing upon publication of OMB approval of the opt-out rules in the Federal Register. Finally, the FCC establish a 30-day implementation period to limit permissible abandoned calls on a per-calling campaign basis, in order to discourage intrusive calling campaigns (where telemarketers engage in “hang up calls” to determine which phone numbers are likely to answer calls).

NOTE: The terms of the Robocall rules do NOT override the separate “Do Not Call” Registry rules, which must still be followed.

Lou Fiore

Chair, AICC

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Lou:

A few comments:

1. In Canada, robocalling requires that all calls must be first filtered of all telephone #that are currentely registered on a website of "do not call telemarket" list.

2. laws in the jurisdiction can be avoided by calling from another country.

3. I have heard some offshore organizations have actually used the "do not telemarket" list as a data source in compiling their call list.

Robert Baxter, P.Eng.

Vancouver Fire and Security