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August 2012: FCC TCPA Amendment: Questions Answered

by Joseph Sanscrainte, an attorney specializing in telemarketing law..

FCC TCPA Amendment: Questions Answered

We recently held one of our largest webinars ever where we discussed the TCPA (telephone Consumer Protection Act) amendments and changes coming down that will have a dramatic impact for companies using automated dialing equipment. We had a number of great questions so we decided to put together the summary below for your convenience.

Q: What are the various means of obtaining written prior express consent to use a predictive dialer to call a cell phone?

There's no magic formula with regard to obtaining prior express consent to use a predictive dialer to call a cell phone. The only major consideration is the ease with which such consent can be obtained. Generally speaking, most telemarketers will opt for some form of online checkbox; with language associated with the checkbox to signify that the person is consent to receive calls on the cell phone number provided via the online form. The key questions here, of course, are WHAT to say in the disclosure, and WHERE to place the disclosure. The more explicit the language, the better, and the greater proximity of the language to the checkbox, the better.

Q: Under FCC rules, do predictive dialer telemarketing calls need to provide interactive opt out if no agent is available at time of called party connection?

This is the key item with the new FCC rules - there has to be an automated opt-out during the abandoned call message provided when an agent is not available at the time of the called party connection. (The FTC has no such requirement).

Q: If we are working with a customer on a loan in process and communicate by cell, do we still need express written consent?

If you're delivering the call via predictive dialer, the answer is yes, you will need express written consent. The easiest solution? Don't use a predictive dialer to make such calls! Manual dialing is not subject to the prior express written consent rule.

Q: When calling a consumer with an EBR for annual subscription renewal reminder is it considered telemarketing or informational?

This is a trick question! If you are calling to renew a subscription, you are asking a consumer to make a purchase of goods or services via the telephone, and this constitutes telemarketing. The REAL question here is whether this call is subject to any state/federal laws like Do Not Call and identification disclosure rules. Generally speaking, an EBR will act as an exemption to state and federal restrictions (but the devil is in the details here - check Contact Center Compliance's Compliance Guide).

Q: What is the automated opt-out message that needs to be played in the abandoned call message?

First of all, in a predictive dialed call, whenever a Service Rep is not available to handle the called Consumer's questions, comments, and/or requests, that Consumer must receive, within two (2) seconds after the Consumer's completed greeting, a prerecorded identification message that states only the name and telephone number of the business, entity, or individual on whose behalf the call was placed, and that the call was for telemarketing purposes. The FCC provides no direct guidance on what the opt-message must be in this context, but a simple "please press # to be placed on our do not call list" would suffice.

Q: Is the term progressive dialing the same as preview dialing?

No, it's not. Preview dialing presents a number to a sales rep, and the number is only dialed when the sales rep decides to dial the number (i.e., there is some human intervention involved in order for the number to be dialed.) Progressive dialing presents the number to the sales rep, and the sales rep is given some pre-determined amount of time before the call is automatically placed. In this humble attorney's mind, preview dialing = manual dialing, and progressive dialing = predictive dialing.

Q: Our caller-id shows our company name and phone number do we need to tell them our phone number as well while we are talking to the customer?

The FCC requires (along with other identification details) the disclosure during the call of either the seller's address or phone number.

Q: We only use opt-in marketing . . . are we safe from the DNC scrubbing rules?

Generally speaking, a true opt-in will exempt a telemarketer from state and federal DNC rules. As always, however, the devil is in the details, so pay attention to whether you are claiming your opt-in acts as an "inquiry" (look out for time-frame on how long you can call the person) and "permission/consent to call" (look out for whether the state requires the permission to be in writing).

Q: Are there certain companies that have to use the DNC registry?

First of all, there's no such thing as "the" DNC registry! There are 13 states that have DNC lists, and of course there's the Federal level DNC list. Moving on, however, if you make outbound telemarketing calls (doesn't matter how many), and you are not exempt from state and/or federal level lists, then you have to abide by the DNC rules!

Q: Can you give us a CITE for that 2003 FCC decision that any system "without human intervention" and which "can dial thousands of numbers in a short period of time" is NOT an autodialer?

In a rulemaking dated July 25, 2003, the FCC considered the question of whether a predictive dialer met the definition of an ATDS given in the TCPA.

The key part of the FCC's reasoning in determining that a predictive dialer was, in fact, an ATDS, is as follows:
The TCPA defines an "automatic telephone dialing system" as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers."

The statutory definition contemplates autodialing equipment that either stores or produces numbers. It also provides that, in order to be considered an "automatic telephone dialing system," the equipment need only have the "capacity to store or produce telephone numbers. * * * The basic function of such equipment, however, has not changed--the capacity to dial numbers without human intervention. Coupled with the fact that autodialers can dial thousands of numbers in a short period of time, calls to these specified categories of numbers are particularly troublesome.

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