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While outbound telemarketing using dialers has been and remains one of the best ways to identify and qualify sales leads, it just got a little bit harder, thanks to amendments to the Telephone Consumer Protection Act (TCPA) implemented in mid-October.

The Federal Communications Commission (FCC (News - Alert)), which oversees the TCPA, said the tweaks were needed due to changing technology, specifically, the prevalence of mobile phones and the use of automated outbound dialing (a.k.a. “robocalling”).

Beginning October 16th, companies are prohibited from calling land lines or cell phones or sending text messages using an "automated telephone dialing system or an artificial or prerecorded voice" without first obtaining the "prior express written consent of the called party." Prior to the implementation of these new rules, companies were free to robocall or text if a customer had done business with the company during the previous 90 days and had provided their contact information. That provision has been eliminated, and the FCC and Federal Trade Commission (FTC (News - Alert)) have recently stepped up their enforcement of the TCPA rules.

There are some exceptions to the new rules, namely, for healthcare organizations covered by HIPAA, or the Health Insurance Portability and Accountability Act of 1996. If the automated outbound calls or text messages are designed to deliver a "health care" message by or on behalf of a HIPAA-covered entity or its business associate, the new HIPAA exception will apply and the recipient's written consent will not be required, though these organizations are still required to obtain prior verbal consent.

Other exemptions are for non-profit organizations such as charities. Calls made by or on behalf of a tax-exempt, nonprofit organization will require only prior express consent rather than prior written consent, according to national law firm BakerHostetler.

“The distinction between telemarketing and non-telemarketing calls can be difficult to discern in some cases,” writes BakerHostetler. “Providers will need to examine their messages carefully and ensure that they know what types of communications they are making in order to obtain the correct consent for calls to a restricted line.”

In the healthcare example, HIPAA-covered entities must ensure that the “health care message” is non-commercial: in other words, calls or texts trying to upsell dermatology patients to cosmetic surgery, for example, would not fall under HIPAA exemptions.

In other changes to the TCPA, there is a new rule that requires companies doing outbound telemarketing to put in place an automated, interactive opt-out feature for autodialed or prerecorded telemarketing calls to cell phones numbers and for prerecorded telemarketing calls to residential lines.

Non-compliance of any of these new rules could spell big fines for many companies using dialers and automated, prerecorded messages, so all organizations should be careful to understand the new rules and see if or where they apply to their business.