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

www.tcpasummit.com

Identifies serial TCPA plaintiffs & mitigates risk while running wireless and DNC scrubs

Over 116k litigator phone numbers and growing

Updated monthly from multiple sources

First of its kind collaborative industry solution

Identify litigators on both inbound and outbound campaigns

Stops professional litigants in their tracks

Wrong number class actions

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

ID

TCPA Wireless Verification

Identify disconnected and re-assigned wireless numbers

Real time carrier level access

Close to 100% verification on wireless data

Score matches for TCPA verification

Quick turnaround

Reduce virtually all wrong number calls to wireless numbers

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.