Auto Dealer Monthly Magazine is the daily operations publication serving the retail automotive industry. This automotive publication serves dealer principals, officers and general managers with the latest best practices.
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By Michael Goodman LEG A L SAFELY CAPTURING CELL PHONES Te Telephone Consumer ProTe Te tection Act (TCPA) is more than yea 20 years old, and it is struggling to kee pace with business inkeep no novati novations. Wi Within weeks afer the Oct. 16 2013, 16, 20 efective date for the TCPA's new "prior express written consent" standard for certain types of sales calls and texts ("Lose Tat Number," December 2013, Page 34), the Federal Communications Commission (FCC), which is responsible for issuing rules interpreting the TCPA, published for public comment several industry petitions seeking relief from the new standard. Even outside the topics covered by the petitions, there is confusion regarding the new consent standard. Te substantial monetary penalties that can arise from violating TCPA rules make it essential to follow them closely. THE NEW STANDARD Prior to the new consent standard for sales contacts, the TCPA established a single consent standard, whether a contact was for sales, servicing or collections. Tis original consent standard — "prior express consent" — applied if the call was placed to a ©ISTOCKPHOTO.COM/ALBIBERON The TCPA now requires consent for calls and texts to wireless numbers, but dealers can still capture mobile numbers on credit apps. Legal expert explains the subtleties of the new rules. cell phone using an "automatic telephone dialing system" or a prerecorded message. Neither the TCPA nor the FCC's TCPA rules defned this consent standard, but the FCC took the position that a creditor had valid consent to call any cell phone number that a consumer volunteered to the creditor. Tis meant that dealers could call any such numbers that a consumer Michael Goodman is a partner with Hudson Cook LLC. He is a former FTC staff attorney whose practice includes advertising and privacy compliance as well as response to government investigations. MGoodman@AutoDealerMonthly.com 38 AUTO DE ALE R MONTHLY • FE BRUARY 2014 listed on a credit application, even if there was no disclosure as to what the dealer would use that number for. Te current compliance landscape is more complicated than that. For non-sales contacts, the "prior express consent" standard described above continues to apply. Dealers can rely on the fact that a consumer has volunteered his or her cell phone number, on a credit application or otherwise, to call or text that number using an auto dialer or a prerecorded message for any non-sales purpose. However, this approach no longer works for sales contacts. Sales contacts to cell phones using an auto dialer or a prerecord- ed message, as well as sales calls to residential lines using a prerecorded message, now require the consumer's "prior express written consent." Tis means that dealers cannot rely only on the fact that the consumer volunteered his or her cell phone number on a credit application to call or text that number using an auto dialer or prerecorded message for sales purposes. Rather, the FCC's new "prior express written consent" standard requires a written agreement, signed by the consumer — including the consumer's cell phone number — that includes two "magic words" disclosures: • Te frst disclosure must ex-