tcpa and contact center law: what's on the horizon in 2017?
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TCPA and Contact Center Law:
What’s on the Horizon?
Webinar presentation by attorney Eric Allen and Ryan Thurman
November 2, 2016
FTC vs FCC vs States
Federal Communications Commission (FCC).
TCPA (statute and regulations)
Fine up to $16,000 per violation
Broad jurisdiction over all telecommunications
Private right of action ($1500/call)
Federal Trade Commission (FTC).
Telemarketing Sales Rule (TSR)
Fines up to $40,000 per violation (Aug 1, 2016)
More limited jurisdiction
No private right of action
State Regulators
AGs and Divisions of Consumer Protection
TCPA & TSR recap
A text is a call.
Rules differ – telemarketing vs. non-marketing
No non-emergency calls from an autodialer to a cell phone without “prior express consent.” (or “written”
consent for marketing)
An automatic telephone dialing system (ATDS) is
defined broadly, but there are limitations.
Potential/future ATDS capacity = autodialer, but not
mere theoretical capacity.
Anything that can dial “thousands of numbers in a short period of time” is likely considered an ATDS by the FCC.
TCPA & TSR recap cont.
Implied “express consent” for non-marketing calls when
consumer/debtor provided number to company in normal
course of business without conditions and has not opted out
or had their number reassigned.
Consumer may revoke their prior consent at any time and in
any “reasonable” manner.
“Called party” is the subscriber or customary user – not the
intended recipient.
Only 1 free pass when calling a reassigned number, even if
they don’t answer and tell you it’s a wrong number.
Special exemption (July 2015) for certain healthcare and
financial alerts.
Other behavioral rules.
2016 TSR Amendments Effective August 1, 2016:
Fine amount now $40,000 (TSR, CANSPAM, ROSCA, etc.)
Effective June 13, 2016:
Rules banning remotely created payment orders and checks, cash-to-cash money transfers, and cash reload mechanisms.
Effective February 12, 2016:
Requirement that a description of the goods or services purchased be included in the call recording for certain transactions.
Examples given illustrating the types of burdens that deny or interfere with a consumer’s right to be placed on a seller’s or telemarketer’s entity-specific do-not-call list;
Clarification that a seller or telemarketer must have proof that it has an existing business relationship with, or has received an express written agreement from, a consumer to be exempt from DNC requirements;
Limitation on the safe harbor for when the telemarketer does not get the information needed to place consumer on its internal DNC list.
Amendment to b2b exemption clarifying the business-to-business exemption only applies when you are trying to sell goods to the other business, not to individual employees at the business.
Emphasis given that sellers are prohibited from sharing the cost of the fees to access the DNC Registry.
2016 TCPA update
Recent amendment and Declaratory Ruling
exempt the Government and certain private
contractors from TCPA.
2015 Bipartisan Budget Act
July 5, 2016 FCC Declaratory Ruling
Consolidated appeal against FCC by ACA
and 8 other petitioners.
Challenges FCC definition of an autodialer, consent
revocation, reassignment.
Spokeo provides TCPA defendants with new
line of attack.
October 20, 2016 informal
ATDS definition?
FCC lawyer stated the following to the DC Circuit
Court of Appeals at the oral argument on the ACA appeal: (An autodialer is…)
Any device that can store or produce numbers at
random, sequentially, or from a fixed list or database,
and can dial those numbers automatically without
human intervention.
That incorporates all of the elements you'll see
mentioned in those orders. Captures “technology that can dial thousands of numbers in a short period
of time and thereby lends itself to pernicious uses.”
Recent positive cases
Strauss v. CBE Group (manual/preview dialer was ok)
Jenkins v mGage LLC (not an autodialer because human intervention)
Reyes, Jr. v. Lincoln Automotive Financial Services (no consent revocation)
Baisden, et al. v. Credit Adjustments, Inc. (“prior express consent” still alive and well)
Robins v. Spokeo Inc. (standing, plaintiff needs “concrete harm”)
Barry Sartin v. EKF Diagnostics (relied on Spokeo, lack of harm)
Political calls
Calls made by or on behalf of a political non-profit are generally exempt from the FCC/TCPA, except for the cell phone rule.
Even political calls need “express consent” to autodial a cell phone for any non-emergency purpose.
Political non-profit entities are outside jurisdiction of FTC altogether, however:
Unfortunately, a call by a for-profit telefunding vendor is subject to the FTC (TSR), including the robocall prohibition.
I.e., a for-profit vendor raising money for a political organization must refrain from robocalls without consent (landlines and cells) and also must honor opt outs.
Political telefunders are
also prohibited from:
Making a false or misleading statement to induce a political contribution.
Making misrepresentations.
Engaging in credit card laundering.
Placing “cold” calls that deliver prerecorded messages.
Engaging in acts defined as abusive under the TSR, such as calling before 8 a.m. or after 9 p.m., disclosing or receiving consumers’ unencrypted account information, and denying or interfering with a consumer’s right to opt out.
Some states prohibit robocalls, even for political non-profits (California, for example).
“Express consent” vs “express written consent”
Non-marketing and non-profit calls only require
“express consent” to autodial cell phones.
“Express consent” can be implied (per FCC) from
the person’s provision of the number to the company in the normal course of business without
conditions, until they opt out.
Message must be “closely related” to the reason
the number was collected in the first place.
Marketing calls by for-profit entities require
“written consent” (harder to obtain).
“Written consent”
Identify specific telephone number to be called.
Identify the purpose (marketing, collections, etc.)
Identify which specific business(es) will call them.
Identify technology to be used (ATDS, Prerecorded, SMS).
Disclose that they are not required to consent in order to buy something (for marketers only).
Collect an unambiguous, affirmative agreement evidencing consent after “clear and conspicuous” discloses. (Can’t be in fine print or in privacy policy, etc.)
Obtain written signature (or electronic signature under ESIGN Act or similar state laws).
Sample consent
languageBy clicking SUBMIT, I agree to be contacted by Allen Legal, along with its agents and partners, at the number I entered above, which I certify is my own number, for marketing and other purposes, including through the possible use of an autodialer, prerecorded and text messages. I agree that calls may be recorded or monitored and I will update Allen Legal immediately if I change my number. I am not required to consent in order to purchase. SUBMIT
Be sure to capture at least the following:
URL
Time and Date Stamp
IP Address
Screenshot or similar data showing exactly what they saw when they consented and what they entered into the form.
Store for at least 5 years beyond the last date you will rely on the consent.
On the horizon for 2017?
A new president sworn in on January 20, 2017.
In time, new FCC commissioners to be appointed,
possibly altering the dynamic on the FCC.
New regulatory positions on new technology.
(Avatar, etc.)
New trial court and appellate decisions on various
dialing platforms.
ACA appeal ruling from DC circuit court.
Possible appellate scale-back of certain ATDS,
consent and reassigned number rules.
Spokeo provides TCPA defendants with new line of
attack. Still needs to be tested in many courts.
2017 compliance hacks!
Litigator scrubbing.
Reassigned number scrubbing.
Policing vendors (willful ignorance no longer flies).
Avoid manual platforms that still “quack” like a dialer.
Resolve consumer complaints (refunds, apologies, etc.)
TCPA insurance (new, hard to find, but does exist).
Stay in tune! Come to events and subscribe to alerts
and releases from FCC, FTC, CFPB, DNC.com, Allen
Legal, etc.
16
Are you safe from:
Wrong party contacts?
TCPA Plaintiffs?
Accidental TCPA violations?
TCPA liability?
Are you willing to bet EVERYTHING?
Put TCPA Litigation on ICE
Litigator Scrub 17
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Over 116k litigator phone numbers and growing
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Consent claims
Free Litigator Test for Webinar attendees
Identify Wireless Data Real-time
Separate wireless v. landline for dialing modes
Covers both carrier and ported wireless numbers
Can be combined with Litigator Scrub for max TCPA protection
Also available: VoIP identification
TCPA Wireless ID
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Identify disconnected and re-assigned wireless numbers
Real time carrier level access
Close to 100% verification on wireless data
Score matches for TCPA verification
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Reasonable per input fees with no commitment
Questions?Eric Allen - Allen, Mitchell & Allen PLLC
AllenLawyer.com
801-930-1117
eric@allenlawyer.com
Ryan Thurman - Contact Center Compliance
DNC.com
866-DNC-LIST (362-5478) x 116
ryan@dnc.com
CLEARWATER TCPA SUMMIT: DECEMBER 6
https://clearwater-tcpa-summit.eventbrite.com
Discount code: webinar
This presentation is not legal advice and is not guaranteed to be accurate, comprehensive or up to date. Attending or participating creates no attorney-client relationship. Speak with your own legal counsel regarding all compliance decisions.
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