Prerecorded Telemarketing Messages: Required ID and Opt-Out Menu
Every prerecorded or artificial-voice message has to open by naming the business responsible for the call, and has to give a callback number before it ends. Telemarketing messages to residential lines and cell phones must also offer an automated opt-out, by voice or key press, within two seconds of that identification, and a voicemail version needs a toll-free number that reaches the same opt-out. These are script requirements, cheap to fix before a campaign. A business that gets sued over them also has a pleading defense worth checking.
What does the opening of a prerecorded message have to say?
The name of the company responsible for the call, at the very start, in the form it’s registered under.
The FCC’s rule says all artificial or prerecorded voice telephone messages “shall” do the following, starting with this: “At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated.” That’s 47 C.F.R. § 64.1200(b)(1).
Two details catch businesses. The first is the word “beginning.” A message that opens with a pitch and names the company 20 seconds in doesn’t comply. The second is the registered name. A brand name or an assumed business name that doesn’t match the name on file with the state invites the argument that the message never identified the caller at all. If your marketing name differs from your legal name, I’d say both.
The rule covers prerecorded and artificial voices. In its 2024 declaratory ruling, FCC 24-17, the FCC confirmed that the TCPA’s restrictions on artificial or prerecorded voices “encompass current AI technologies that generate human voices.” The identification rule applies to informational calls too, not only to sales calls. A payment reminder from a prerecorded system has to identify the business just like a promotion does.
What has to come later in the message?
A callback number that a listener can catch, and that isn’t the dialer’s own number.
Under § 64.1200(b)(2), the message must “During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual.” It can’t be a 900 number or any other number with charges beyond ordinary transmission charges. And for telemarketing messages, and for certain exempt calls to residential lines, the rule adds that “such telephone number must permit any individual to make a do-not-call request during regular business hours.”
That last clause is the one I’d audit first. A callback number that rings to a sales queue, or to a recording that never offers a way to opt out, is a weak answer to a claim that the number didn’t let anyone make a do-not-call request.
When is an automated opt-out menu required, and how fast?
For telemarketing to residential lines and cell phones, and for exempt residential calls, within two seconds of the identification.
The FCC adopted this requirement in its 2012 Report and Order, revising its rules “to require any artificial or prerecorded message call that could be answered by the consumer in person provide an interactive opt-out mechanism.” The order said the mechanism must be “announced at the outset of the message and is available throughout the duration of the call.” The same order limited the requirement “to autodialed or prerecorded telemarketing calls” at that time.
The current text is in § 64.1200(b)(3). It applies where the message is made under one of the FCC’s residential-line exemptions or “includes or introduces an advertisement or constitutes telemarketing” and reaches a residential line or a covered number such as a cell phone. Those messages must “provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information required in paragraph (b)(1) of this section.”
The rule also says what the mechanism must do. When the person opts out, “the mechanism must automatically record the called person’s number to the caller’s do-not-call list and immediately terminate the call.” A menu that sends the opt-out to a live agent who tries to save the sale doesn’t meet that text.
What about prerecorded messages left on voicemail?
They need a toll-free number that leads straight to the automated opt-out.
Section 64.1200(b)(3) continues: “When the artificial or prerecorded-voice telephone message is left on an answering machine or a voice mail service, such message must also 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 and automatically record the called person’s number to the caller’s do-not-call list.”
A press-one menu does nothing on a voicemail, which is why the toll-free callback exists. Test it. In my view, the cheapest compliance step in this whole area is having someone in your company call the toll-free number from every voicemail script once a month and confirm that it reaches the opt-out and records the number.
How do these rules interact with the abandoned-call rule?
They overlap whenever a predictive dialer connects a call and no live agent is free.
The FCC’s abandoned-call rule treats a telemarketing call as abandoned “if it is not connected to a live sales representative within two (2) seconds of the called person’s completed greeting,” under § 64.1200(a)(7). When that happens, the telemarketer or seller must, within two seconds, play a prerecorded message limited to disclosing that the call was for “telemarketing purposes,” the name of the business, and a do-not-call number, plus an automated opt-out mechanism. Our post on the abandoned-call rule and dialer logs covers the three percent limit and the records that go with it.
Can a consumer sue over a missing identification or opt-out?
It depends on which rule the claim is built on, and that’s a real defense point.
The identification and callback rules in § 64.1200(b) implement the statute’s technical and procedural standards for prerecorded voice systems. 47 U.S.C. § 227(d)(3) directs the FCC to require that “all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual, or other entity initiating the call, and (ii) shall, during or after the message, state clearly the telephone number or address of such business, other entity, or individual.”
Subsection (d) has no private damages provision of its own. In Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011), the Sixth Circuit stated that the technical and procedural standards in § 227(d) and § 64.1200(b) “do not provide a private right of action or a statutory-damages provision.” That’s one circuit’s statement, in a case mostly about federal jurisdiction, so expect plaintiffs elsewhere to argue the point.
Plaintiffs may try another route, and you should plan for it. The FCC’s internal do-not-call rules, which apply to calls to a residential telephone subscriber, require anyone making “any call for telemarketing purposes” to “provide the called party with the name of the individual caller, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which the person or entity may be contacted,” under § 64.1200(d)(4). In Charvat, the court said the plaintiff should have pleaded his do-not-call claims under § 227(c)(5) and let him amend. Whether the identification piece of § 64.1200(d)(4) is privately enforceable is itself disputed, because some courts have suggested it was issued under § 227(d), not the Do Not Call subsection. Under that section, a claim requires “more than one telephone call within any 12-month period by or on behalf of the same entity,” and it carries a reasonable-practices defense.
Prerecorded-message claims and the defenses that answer them
| Claim theory | Statute or rule | Exposure per call | Defenses |
|---|---|---|---|
| Prerecorded telemarketing without prior express written consent | 47 U.S.C. § 227(b)(1); 47 C.F.R. § 64.1200(a)(2), (a)(3) | $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | Signed written consent, an exemption for the call type, or no prerecorded voice used |
| Missing identification or callback number | 47 U.S.C. § 227(d)(3); 47 C.F.R. § 64.1200(b)(1)-(2) | Disputed: no private damages provision in § 227(d) | No private right of action, or a compliant script |
| Telemarketing call to a residential subscriber without required identification (internal do-not-call rules) | 47 U.S.C. § 227(c)(5); 47 C.F.R. § 64.1200(d)(4) | Disputed, and if actionable, up to $500 or actual loss, whichever is greater, and up to $1,500 if willful or knowing | Residential subscriber required, a challenge to private enforcement of (d)(4), a compliant script, the more-than-one-call threshold, or reasonable practices and procedures |
The damages rules are in 47 U.S.C. § 227, subsections (b)(3) and (c)(5). Whether to increase an award is up to the court.
Records to pull when a prerecorded-call claim arrives
The audio usually decides these cases, so start with it. The firm’s California TCPA defense page covers how TCPA claims move from demand letter to lawsuit to class action. Then:
- Preserve every version of the recorded or AI-voice message used in the campaign, with the dates each ran, and the dialer logs, call detail records, and consent records for the numbers involved.
- Export the do-not-call and opt-out logs, including entries recorded by the automated opt-out menu and the toll-free line, with dates.
- Pull the National Do Not Call Registry scrub records and the Registry versions used for the campaign.
- Gather the vendor contracts, scripts, IVR menu configurations, and the answering-machine detection settings for each campaign.
- Speak with a lawyer before answering the demand letter, calling the consumer back, or offering a settlement.
Questions businesses ask about prerecorded-message disclosures
Does the identification rule apply to informational robocalls, like appointment reminders?
Yes. The text of § 64.1200(b) reaches “All artificial or prerecorded voice telephone messages,” not only marketing. The automated opt-out menu is narrower, applying to telemarketing to residential lines and covered numbers and to calls made under the residential exemptions. Every reminder still needs the business name at the start and a callback number.
Can our opt-out menu transfer callers to a live agent?
Not as the opt-out itself. The rule says that when the person elects to opt out, the mechanism “must automatically record the called person’s number to the caller’s do-not-call list and immediately terminate the call.” You can offer a separate option to speak with someone, but pressing the opt-out key has to end the call and log the number.
Do these rules apply to AI-generated voices?
Yes. The FCC’s 2024 declaratory ruling applies the TCPA’s artificial-voice restrictions to current AI technologies that generate human voices. If a campaign uses voice cloning or a generated voice reading a script, I’d apply every requirement in this post, from the opening identification to the toll-free voicemail opt-out.
Is a missing opt-out menu always worth a lawsuit?
Not by itself. The answer depends on whether the plaintiff has a private claim for the rule invoked, whether the call was telemarketing, and how many calls the person received. A single prerecorded call with a defective script can carry more defenses than the demand letter admits.
When a prerecorded campaign draws a claim
If your company is accused of placing prerecorded telemarketing calls without the required identification or opt-out, the recorded messages and the opt-out logs usually decide which claims survive. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving prerecorded and artificial-voice calls. Contact Rosenberger + Kawabata online for a free and confidential consultation, or call (310) 894-6921.
Sources
The statute is the Telephone Consumer Protection Act at 47 U.S.C. § 227. The FCC’s rules are at 47 C.F.R. § 64.1200, in the eCFR version as of March 28, 2025. The opt-out requirement was adopted in the FCC’s 2012 Report and Order, FCC 12-21 (Feb. 15, 2012), and the AI-voice ruling is the Declaratory Ruling, FCC 24-17 (Feb. 8, 2024).
The court decision is Charvat v. NMP, LLC, 656 F.3d 440 (6th Cir. 2011).
This post is general information about the Telephone Consumer Protection Act and related laws as of March 28, 2025. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.