Scared of TCPA Fines?

TCPA Compliance Webinar Series

Questions During Webinar?

We will be answering attendee questions at the end of the

webinar.

Send question in through the Q&A feature on the GoToWebinar side panel

Sponsored By:

Compliance Experts:

Legal:

Association:

David J. Kaminski

David Kaminski is a partner at Carlson & Messer LLP in Los Angeles, and specializes in the defense of banks, credit grantors, telemarketers, and collection agencies in all areas of financial services litigation.  He is a recognized authority regarding consumer litigation statutes, including the FCRA, FDCPA and TCPA, and regularly gives presentations at the leading industry trade organizations throughout the U.S. 

Ryan Thurman

Ryan Thurman is the sales and marketing director with Contact Center Compliance with over 15 years of experience in the Contact Center Industry. Ryan is recognized as a compliance industry expert with a focus on State and Federal marketing and privacy regulations including TCPA, FTC, State and global compliance regulations. He also serves as the Regulatory Chair of the West Coast Chapter of PACE.

Mitch Young

Mitchell Young is Senior Director at Neustar, where he oversees the Collections, Financial Services, Call Center and Data verticals. Mitchell has been at Neustar for 11 years helping companies leverage real-time identity data and analytic insights to improve operational efficiencies and manage risk and compliance.

Geoff Mina

Geoff Mina leads the company’s strategic direction and is also the primary architect of the Connect First platform.  He has taken the product through four generations in a desire to develop the most feature rich, highly scalable, fault tolerant, and secure Cloud Based Contact Center Solution on the market.  Geoff has over 15 years of experience in the cloud telecommunications space.

Agenda

TCPA UpdateDavid Kaminski

TCPA Data Compliance Tips

Ryan Thurman

Mitigating the Risk of TCPA

Mitch Young

TCPA Safe ModeGeoff Mina

Compliance Webinar: FCC TCPA 2015 Declaratory Ruling

David KaminskiCarlson & Messer LLPPartner

TCPA Update Agenda

1. Autodialers

2. Consent issues (Phone numbers in contact list, Consent for ported numbers, Revocation, “Proximity” consent, Reassigned phone numbers)

3. PEWC Limited Waiver

4. On-Demand Texts

5. Text messages/internet-to-phone technology

6. Compliance Strategies

The FCC 2015 Declaratory Ruling – Reaffirms/Clarifies TCPA Rules

1. On July 10, 2015, the FCC released its Omnibus Declaratory Ruling and Order (“7/10/15 Order”) in response to 21 Petitions regarding the definition of an ATDS, liability for calls to reassigned numbers and other issues. – The FCC reaffirmed its position that the TCPA is to be construed

broadly– The FCC reaffirmed TCPA is to be construed in favor of the consumer

and EMPOWER consumers to stop unwanted calls (para. 1)– The FCC reaffirmed TCPA protects consumer privacy and public

safety (emergency line)2. The FCC reaffirmed TCPA’s restrictions to wireless numbers apply to

non-telemarketing calls (Ex. informational calls.) (7/10/15 Order, para. 123)

3. Debt collection calls remain within the purview of the TCPA4. FCC states it was making a Declaratory Ruling that “clarify[ies] existing

law or resolves controversy regarding the interpretation or application of existing law and precedents.” (7/10/15 Order, para. 23) NOT ENTIRELY ACCURATE

TCPA 1991 – Wireless Autodialer Ban

§ 227(b) Restrictions on use of automated telephone equipment

(1) Prohibitions:

It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States –

A. to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice - …

B. to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. (Emphasis added)

LANDLINE CALLS – § 227(b)(1)(B) - No liability for artificial/prerecorded informational voice calls – Commercial Call exemption applies - 64.1200(a)(3)(iii)

FCC Rules on Autodialers

Automatic Telephone Dialing System defined by TCPA: 47 USC 227(a)(1): “ATDS”• (a) DEFINITIONS —As used in this section—

(1) The term “automatic telephone dialing system” means 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.

FCC 2015 Rules on Autodialers

1. Reaffirms 2003, 2008 FCC rulings that ALL predictive dialers are autodialers. (7/10/15 Order, para. 12-13). PD’s retain the capacity to dial thousands of numbers in a short period of time and could harm public safety

2. A dialer is equipment which has “capacity to dial numbers without human intervention” – FCC 2003, 2008 Rulings (Note: How the human intervention element applies to a particular equipment involves a case-by-case determination)

3. An ATDS includes when calling a set list of consumers. (para. 10)

4. Equipment is ATDS even if not presently used for that purpose.” Id. (emphasis added)

5. Does not include speed dialing. (7/10/15 Order, para. 17)

FCC Rules on CAPACITY

“CAPACITY” Clarified: the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities (7/10/15 Order, para. 16)

“Capacity” to be interpreted Broadly (7/10/15 Order, para. 19)

Future software additions are included in capacity• There are “outer limits” to capacity - “must be more than a theoretical

potential that the equipment could be modified to satisfy the ‘autodialer’ definition.” Id.

• Not all devices are autodialers even if has some capacity to store and dial numbers (7/10/15 Order, para. 18) –

• Ex. handset with speed dial is NOT a dialer. Rotary Phone not a dialer

Does broad construction of “capacity” sweep in smartphones ?? No lawsuits filed in this regard There was “no evidence that friends, relatives, and companies with which

consumers do business find those calls unwanted” FCC will take a “wait and see” approach and monitor issue and further

clarify if needed

Inconsistent definitions of an ATDS in FCC 2015 Ruling

“capacity to store or produce telephone numbers to be called, using a random or sequential number generator” – i.e., the TCPA statutory definition

(7/10/15 Order, para. 109, 111, 112)

“capacity to dial numbers without human intervention” – FCC 2003, 2008 Rulings (Note: How the human intervention element applies to a particular equipment involves a case-by-case determination)

(7/10/15/Order, para. 14)

“dialing equipment that generally has the capacity to store or produce, and dial random or sequential numbers” –

(7/10/15 Order, para. 10)

Additional FCC Rules on Auto dialers

Does Use of Separate Systems In Dialing Process Avoid ATDS Issues?? – Likely NOT.

Separate equipment dividing storage and calling functions between two companies could be considered an ATDS. (7/10/15 Order, para. 23)

If the net result of combining operation enables the equipment to have the capacity to store or produce telephone numbers to be called using a random or sequential number generator. (7/10/15 Order, para. 24)

FCC Rules on “Called Party” – Who is Called Party Under TPCA

FRAMEWORK for Ruling:1. Term “called party” is ambiguous.2. FCC Rejects “intended recipient” theory (7/10/15 Order,

para. 78)

RULE: “Called party” is: Subscriber - the consumer assigned the telephone

number dialed and billed for the call (7/10/15 Order, para. 73); or

Non-subscriber - customary user of a telephone number included in a family or business calling plan. Id.

Above individuals can grant express consent to be called (7/10/15 Order, para. 73)

FCC Reaffirms CONSENT Rules from Prior FCC Rulings

The FCC does not require any specific method by which a caller must obtain prior express consent. Para. 49 –

Based on Longstanding Rule – “[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary”.

A number in a contact list is not prior express consent in part because consent must be express, not implied. Para. 47, 51, 52

Burden on the caller to prove it obtained necessary prior express consent. Para. 47

FCC says consent ruling should be construed “narrowly” FCC Amicus Brief, June 30, 2014,

Nigro v. Mercantile Adjustment Bureau, 769 F.3d 804 (2nd Cir. 2014)

FCC 2008 Declaratory Ruling - Prior Express Consent – What is Consent?

– Can be verbal or in writing. (Note: TCPA Silent - Clarified by FCC 2/15/12/ Report)

– Via website - Roberts v. PayPal, Inc., 2013 U.S. Dist. LEXIS 76319 (N.D. Cal.)

– placing number on loan app, credit card application, Conditions of Admission forms, patient intake, etc.)

– Can consent be given directly to businesses

– CRUX – get consent ONLY from consumer/debtor (FCC 2015 Ruling emphasizes this.)

FCC Rules on Revocation of Consent

• RULE: “A caller may not limit the manner in which revocation may occur” (7/10/15 Order, para. 47, 64-70) –

• Revocation can be made via any “reasonable means.” para. 55, 64 (reasonable means not defined)

• FCC states it is unfair for called party to bear burden of showing revocation. Id., para. 70

• Porting number does not revoke consent. Id., para. 54

Have Prior Express Consent to Call Landline - Landline ported -

You Have Consent

Prior Express Consent to Call Wireless and that number is ported to

another wireless number - You have Consent

Calls to landline without prior express consent and that

number is ported to wireless - Must get prior express consent

to call cell phone. para. 52

Additional Information on Revocation

• Revocation is the same for informational and telemarketing calls. Para. 69

• Caller’s burden to prove consent. Have ability to do so. Para. 70

• Callers should maintain proper business records tracking consent. Para. 70 - The well-established evidentiary value of business records means that callers have reasonable ways to carry their burden of proving consent.)

• PROVING ORAL CONSENT – Difficult, and documenting in account records could fact dispute. Solution: RECORD, RECORD, RECORD

Reassigned Wireless Telephone Numbers

“Called party” = current subscriber OR non-subscriber customary user of phone

One-free pass rule—one liability-free call after reassignment• To qualify, caller bears the burden of showing it had no knowledge

of reassignment and had a reasonable basis to believe there was valid consent before call made

• Purpose of one call is to gain actual or constructive knowledge of the reassignment

• Unlimited period of time to make one-free call• The one call does not need to connect to a person or voicemail• “If this one additional call does not yield actual knowledge of

reassignment, we deem the caller to have constructive knowledge of such.” (¶ 72)

Reassigned Wireless Telephone Numbers

Single-caller rule—a “single caller” gets one-free pass.• Single caller defined as “any company affiliates, including subsidiaries.”• “Two affiliated entities may not make one call each, but rather one call in

total.” (¶72, n.261)

Wrong/misdialed number calls? One-free pass does not apply.

Bad faith defense? NONE, even if called party purposely and unreasonably waited to notify the calling party regarding reassignment in order to accrue statutory penalties

How is this practical? FCC believes the existence of database tools combined with best practices, and a one-free pass rule, “together make compliance feasible.” (¶83)

Reassigned Wireless Telephone Numbers

How to Comply (according to FCC)• Make manually dialed call to confirm identity • Listen to name on voicemail • Send email or mail request to confirm telephone numbers

or update contact information• Database tools such as Neustar’s “Verification for TCPA”

product• Strong support for “full participation from carriers to make

this type of option more effective” • Require consumers to notify businesses when they switch

numbers via contractual agreements and seek recourse for violation of the agreement

• Include an interactive opt-mechanism in prerecorded calls so that recipients can easily report a reassigned or wrong number

Reassigned Wireless Telephone Numbers

How to Comply (Cont’d)• Implement procedures for recording wrong

number/reassigned number reports received by customer services reps placing outbound calls

• Implement processes for allowing customer service agents to record new telephone numbers when receiving calls from customers

• Utilize an autodialer, manual dialer, and/or live caller to recognize triple-tones that identify and record disconnected numbers

• Establish policies for determining whether a number has been reassigned if there has been no response to a two-way call after a period of attempting to contact a consumer

• Enable customers to update contact info by responding to any text message they receive

“Old” Written Telemarketing Consent Is Not Enough

The Coalition of Mobile Engagement Providers and the Direct Marketing Association filed petitions seeking rulings that their members could rely upon written consent provided prior to October 16, 2013.

Prior express written consent regulation for telemarketing calls and text to wireless numbers and all telemarketing artificial or prerecorded voice calls was not clear as to whether new consent required for all such calls made after regulation became effective.

FCC says you must get new consent consistent with disclosure requirements.

Clarifies that disclosures must be given and for ongoing campaigns disclosures in a call to action will not suffice; they must be in the written agreement.

Limited Waiver of Prior Express Written Consent Regulation

Grants a retroactive waiver of the prior express written consent regulations

Duration of waiver: October 16, 2013 through 89 days following release of Order

Waiver applies to Petitioners and their members as of July 10, 2015

Expectations during remaining duration of waiver: obtain for any future marketing calls/texts prior express written consent in the manner required by the current rule

Clarifies that disclosures in definition of “prior express written consent” are required

Says for the first time that including disclosures in call to action is not sufficient for ongoing campaigns; must have disclosures in the written agreement itself. 

On-Demand Text Messages

One-time text message sent immediately after a consumer request does NOT violate the TCPA.• Not telemarketing but “fulfillment of the consumer’s request.” • E.g., consumer sees advertisement or call-to-action display and

responds by texting “discount” and gets a reply text with a coupon.

Conditions:• Must be requested by consumer• Single text in response (more than a single text

requires PEWC)• Sent immediately in response to a specific request• Contains only the information requested by the

consumer with no other marketing

Text Messages/Internet-to-Phone Technology

Text messages are calls under the TCPA.

Equipment that sends internet-to-phone text messages is an autodialer under the TCPA. (e.g., 5555551212@sprint.messaging.net )

“[W]e clarify that other types of text messages that pose the same consumer harms are subject to TCPA consumer protections. Specifically, consumer consent is required for text messages sent from text messaging apps that enable entities to send text messages to all or substantially all text-capable U.S. telephone numbers, including through the use of autodialer applications downloaded or otherwise installed on mobile phones. Consumers face the same privacy impact and may incur data costs from such texts. To free these texts from the TCPA’s protection would leave a glaring gap in the statute’s coverage.” (¶116)

TCPA Compliance Strategies – For Creditors, Service Providers, Mobile Marketers and Collection Agencies

Systems: Maintaining a single system to track/ record evidence of consents and revocation - vital for future litigation).• Documented training on “Do Not Call”

requests • Role of call recording – KEY EVIDENCE

Compliance/Take Aways

1. Use cell phone ID technology to identify cell phone numbers and ported numbers (See FCC warnings)

2.Train Representatives to obtain Consent from consumers and to DOCUMENT: whether there is prior express consent to call consumer using dialer. (Do we have consent to call you at this number)

3. Include express consent language and arbitration clauses with class action waivers in contracts - (Add language: consumer required to notify immediately if telephone numbers change at any time; Terms and conditions can only be revoked in writing.)

4.CREDITOR - Use Broad Consent Language in Terms/Conditions - WIN/WIN - Protect others down the line – may help defeat vicarious liability argument

Take Aways, continued

5. Avoid caller ID “capture” of telephone numbers on inbound calls – Don’t use dialer.

6. When in doubt, manually dial calls – or look to other non-dialer solutions –until PEC is obtained.

7. Document proper consent in software, identify phone fields for cell numbers when PEC obtained! (could help mitigate risk of class certification)- RECORD, RECORD, RECORD – as means to capture Oral consent.

8. If you don’t have Documented Consent, Don’t use Autodialers

9. Be able to distinguish between numbers received from consumer vs. any other method. DANGER – skip tracing.

Take Aways, continued

9. Discard random or sequential number generator programs in dialers. CAVEAT: Old legacy software?

10. Examine securities filings, websites, responses to RFP,  Marketing materials, to avoid references to “dialers,” predictive, auto-dialers, ATDS, etc.  May have to look back as to what was stated in prior docs due to potential 4-year TCPA statute of limitations in some jurisdictions. 

11. Policies and Procedures: Dish Network 2013 Ruling - the necessity of updated and effective company-wide policies and procedures.

• If it is not in writing it does not exist!• Protect the board!

Layering

Create a layering of consents: • Prior policies, language in contracts on

applications, verifications via telephone calls/text messages– Patching systems and contract documentation problems– No one is perfect– Breaking up the class action

THANK YOU

QUESTIONS? David J. Kaminski, PartnerCARLSON & MESSER LLP5959 W. Century Blvd.Suite 1214Los Angeles, California 90045Dir: (310) 242–2204E-mail: kaminskid@cmtlaw.com

TCPA Data Compliance Tips from an Industry Veteran

Ryan ThurmanContact Center Compliance Sales and Marketing Director

Wireless Scrubbing 101

• How to identify wireless numbers at carrier level

• NeuStar ported role. Almost 5 million ports

• Most companies rely on a vendor for expertise

Vendor Selection Tips

• Are they an authorized NeuStar reseller?

• Do they offer indemnification for scrubs?

• What other scrubs are offered?

• VoIP, Litigator, DNC?

Also Subject to TCPA Rules

• Business to business calls

• Political and Survey Calls

• Not just large companies at risk

• Inbound calls that result in call backs

• Watch out for setup calls

• States have their own rules on wireless restrictions

General TCPA Tips

• Hire and an expert vendor

• Scrub as often as possible (real time or daily)

• Audit your dialer call history

• Automate dialer scrubs if possible.

• Remove litigators from inbound and lead gen

• Audit your vendors and partners. Vicarious liability.

Mitigating the Risk of TCPA

Mitch Young

Neustar

Senior Director,Risk & Identity

You Interact with Neustar Everyday

We Help Manage Identity in the Telecommunications Industry

• Power 70% of ALL CallerID & Directory Assistance in the US

• Enable 7 Billion Daily Text Messages• Enable 4 Billion Daily Phone Calls• Enable 1.4 Billion Daily Real-Time Verification Queries

We are measured one record at a time - billions of times a day

Keys to Driving Efficiency & Managing TCPA Risk

Tips to Minimize TCPA Exposure

• Risk lies in Reassigned phone numbers. • Inefficiency lies in Reassigned and Inactive

phone numbers• The following steps help mitigate your risk

and improve efficiency:

1. Identify Phone Type: Landline vs. Wireless + OTT VoIP.

2. Verify Ownership: Verify number still belongs to consumer who gave consent

3. Repeat as necessary

Neustar’s Verification for TCPA Solution

Geoff Mina

Connect First

CEO

Features:

100% Non-ATDS PlatformTechnical and Contractual SafeguardsFull End-to-End Audit and Reporting CapabilityIntegration with DNC.com for Federal/State/Local/Cellular ScrubbingConsent Management

Questions?

TCPA Compliance Webinar Series