tcpa compliance for mobile communications marketing: avoiding penalties and...

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Presenting a live 90-minute webinar with interactive Q&A

TCPA Compliance for Mobile Communications

Marketing: Avoiding Penalties and Lawsuits Implementing Effective TCPA Guidelines, Navigating Grey Areas

With Express Written Consent Requirement

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, SEPTEMBER 24, 2015

Christine M. Reilly, Partner, Manatt Phelps & Phillips, Los Angeles

Marc Roth, Partner, Manatt Phelps & Phillips, New York

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TCPA Compliance for Mobile Communications Marketing: Avoiding Penalties and Lawsuits

This presentation is intended solely for general informational purposes and should not be construed as, nor relied upon for, specific legal advice.

September 24, 2015

Marc S. Roth Christine M. Reilly

Partner Partner

Advertising, Marketing and Media Litigation

Co-Chairs, TCPA Compliance and Class Action Defense Group

6

TCPA Compliance for Mobile Communications Marketing: | Manatt, Phelps & Phillips, LLP

Agenda

TCPA Overview

Consent Requirements

FCC July 2015 Ruling

Definition of Autodialer

Reassigned Wireless Numbers

Revocation of Consent

Maker of a Call

On-Demand Text Messages

Exigent Exemptions for Financial and Healthcare Calls

Text Messages/ Internet-to-Phone Technology

PEWC Reaffirmation and Waiver

Call Blocking Technology

Wrap-Up and Questions

7 TCPA – Overview and Purpose

Enacted in 1991 primarily to address:

– Consumer privacy

Pre-recorded telemarketing (“robo”) calls to residences

Calls to mobile phones

– Cost of call shifts to recipients

The TCPA:

– Authorized the establishment of a federal Do Not Call list

– Established rules regarding the types of consent required to make certain calls

– Granted the FCC primary regulatory enforcement authority

– Established an attractive private right of action

TCPA: 47 U.S.C. § 227

FCC Regulations: 47 CFR § 64.1200 et seq.


8 Damages under the TCPA

Statutory Damages:

–$500 per call or text or actual damages, whichever is greater.

–Up to $1,500 per call for willful or knowing violations.

Potential for significant damages (treble for knowing):

–1,000 x $500 = $500,000

–10,000 x $500 = $5 million

–50,000 x $500 = $25 million

–100,000 x $500 = $50 million

–500,000 x $500 = $250 million

No cap on statutory damages.

Settlements in multi-million dollar range not uncommon.


9 TCPA Consent Requirements

Basically – You must obtain consumer consent if using an autodialer to call mobile phones or send text messages.

Level of consent determined by type of intended call/message

– Purely informational or transactional

– Commercial/telemarketing

Some exemptions

– Emergency notices

– Carrier service messages

– Healthcare messages under HIPAA


10 TCPA Consent Requirements (con’t.)

Purely Informational or Transactional Calls/Messages

Requires the recipient’s “prior express consent” (47 C.F.R. Part 64.1200(a)(1))

– Not defined in the TCPA or the FCC’s rules

– However, the FCC has ruled that this standard may be satisfied by the consumer providing her phone number to the intended caller

[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. Hence, telemarketers will not violate our rules by calling a number which was provided as one at which the called party wishes to be reached.”

– May be oral or written

– But recent case law requires consideration of the context in which the number was provided



Limitations on Prior Express Consent

– Kolinek v. Walgreens Co. (N.D. Ill. 2014).

Consumer provided mobile number to Walgreens at time of prescription pick up relying on sales associate statement that the number will only be used to verify future refills.

Walgreens sent her text messages with refill reminders. Consumer sued.

Court denied Walgreens’ motion to dismiss, as questions remained about the context under which the consumer provided her phone number and the consumer’s expectation of how the number would be used.

Case eventually settled with no determination on scope of consent issue.



Telemarketing Calls

A call that includes or introduces an advertisement or constitutes telemarketing (47 C.F.R. Part 64.1200(a)(2))

– Broadly defined in TCPA Rules

Advertisement 47 C.F.R. Part 64.1200(f)(1)

– “Any material advertising the commercial availability or quality of any property, goods or services.”

Telemarketing 47 C.F.R. Part 64.1200(f)(12)

– “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental or investment in property, goods, or services, which is transmitted to any person.”

But what if a call/message contains both informational and commercial content?



Dual-Purpose Calls/Texts

– Calls/texts that contain both informational and telemarketing content are considered telemarketing.

– Does not matter that a transaction is not completed (or even introduced) during the call.

– EBR does not matter

– Lead generation is telemarketing

Examples addressed in FCC 2003 Report and Order:

– Calls from mortgage brokers to their clients notifying them of lower interest rates

– Calls from phone companies regarding new calling plans

– Calls from credit card companies offering overdraft protection



Dual-Purpose Calls/Texts

Questionable “dual purpose” messages

– An informational text/call ending in “We value your business.”

– Including a company web site URL in a text message

Chesbro v. Best Buy (9th Cir. 2012)

– Ninth Circuit upheld circuit court finding that pre-recorded “courtesy” messages made by Best Buy to its Best Buy Reward Zone members regarding unused program certificates were not solely “informational,” but rather, dual purpose telemarketing calls, as they encouraged consumers to make a purchase.



Telemarketing Calls/Messages

Requires “prior express written consent”

– From revised FCC 2013 Rules

Harmonized with FTC revisions to TSR in 2008

More stringent level of consent to call cell phones and send unsolicited facsimiles

– Consent agreement must be clear and conspicuous

May not be hidden in terms/conditions/privacy policies, clearly visible font, etc.

– Contain specific disclosures

– Evidence the consumer’s agreement

E-SIGN Act facilitates electronic means of collection


16 Prior Express Written Consent

Definition (47 C.F.R. Part 64.1200(f)(8)):

:“an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.”

Written agreement (can be electronic) shall include a clear and conspicuous disclosure:

– Executing the agreement authorizes the seller to deliver telemarketing calls using an automatic telephone dialing system or an artificial prerecorded voice; and

– The person is not required to sign the agreement or enter into the agreement as a condition of purchasing any property, goods or services.


17 Prior Express Written Consent (cont’d.)

Can be obtained in print, online, IVR

Sample Agreement Language

“By [signing] [clicking Yes below] [replying to this e-mail], I consent to receive phone calls from [Company Name], regarding [Company Name’s] products and services, at the phone number(s) above, including my wireless number if provided. I understand these calls may be generated using an automated technology and that my consent is not required to make a purchase.”

Agreement must include the consumer’s wireless number.

Signature

– Paper - signature

– Online & IVR

Must satisfy ESIGN Act

Click or pressing buttons

Must be recorded


18 Prior Express Written Consent (cont’d.)

Recordkeeping

– Paper. Agreements must include a date, and copies of written agreements must be maintained. May be scanned and stored electronically

– Online. Name, telephone number, time/date of consent, consumer’s IP address, URL of consent page (with exact language)

– IVR. Recordkeeping: Calls must be recorded and maintained.

– E-mail - Copies of e-mails must be maintained.

Verify device (per MMA Guidelines – not TCPA)

– Send confirmation message to provided mobile number

– Content must be limited to enrollment only – no marketing

– Have consumer confirm/verify device

– If no response – do not send future messages


19 July 2015 FCC Declaratory Ruling and Order

Clarifies “existing” law

Addresses 21 petitions/requests filed by industry associations and companies seeking clarification of TCPA and FCC rules

Passed by vote of 3-2 at FCC’s June 18, 2015 Open Commission Meeting

Ruling released July 10, 2015; took effect immediately

“Simple guidance” = Confusing, conflicting


20 Ruling Overview - The Good

No liability for qualified one-time on-demand text messages

Exempts certain exigent healthcare and financial messages (subject to several conditions)

– Be careful, perhaps not a gift

Certain calling platforms/texting apps are not the makers of a call for purposes of the TCPA


21 Ruling Overview - The Bad

Imposes a broad definition of autodialer by focusing on potential or future capacity

Imposes liability for calling reassigned phone numbers with impractical safe harbor

– No safe harbor for misdialed or wrong number calls

Permits revocation of consent by “any reasonable means”


22 Ruling Overview - The “Meh”

Phone numbers in a consumer’s contacts does not confer prior express consent

Permits carriers to develop call blocking technology

Provides certain parties with a limited waiver for “prior express written consent” requirements for marketing calls

Internet-to-phone messaging is an autodialer

Text messages are calls under the TCPA


23 Ruling Overview - The Confusing

What exactly is an “autodialer” now?

What is a “manually dialed” call?

How does human intervention impact the analysis?

How do companies identify reassigned telephone numbers if no database currently exists to identify current subscribers in real time?

What does it mean to revoke consent by “any reasonable means”?

How does the new exigent healthcare exemption relate to the prior HIPAA exception/exemption provided in the FCC’s October 16, 2013 Order?


24 Automatic Telephone Dialing System

Issue: Whether the term “capacity,” as used in the definition of ATDS, means a device’s present or potential capacity.

– Statutory definition: “capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers”


25 Automatic Telephone Dialing System (cont’d.)

Ruling: System may be an ATDS if it has the “potential capacity” even though it is not currently being used for autodialing

– Rejects petitions seeking “present” capacity definition

– Embraces broad definition for fear of rendering statutory definition meaningless

– If system requires a mere software fix or unlocking a dormant ATDS function to perform autodialing functions, then it is an autodialer.

– BUT “mere theoretical capacity” is not sufficient

What is a “theoretical” capacity?

How easily could a system be modified for autodialing?

What is considered the system?


Not an autodialer!

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCOOiyqOG68YCFZKliAod35EC6A&url=http://news.heartland.org/newspaper-article/2013/11/11/obamacare-yet-again-shows-more-government-means-worse-private-sector&ei=O52tVaOZNJLLogTfo4rADg&psig=AFQjCNHTr-hfXYz_h3ntzSxmXayiMFlV6A&ust=1437527730183147


FCC punts on human intervention issue (thankfully?)

– Specific to each individual piece of equipment based on how the equipment functions and depends on human intervention

– A case-by-case determination

Cannot avoid liability by splitting up ownership of dialing and storage equipment among multiple parties

Reaffirms 2003 and 2008 Rulings that all predictive dialers are autodialers

Rejects concerns that all smartphones will be found to be autodialers

– No evidence in the record

Unclear whether and to what extent courts will pay deference to the ruling


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCOOiyqOG68YCFZKliAod35EC6A&url=http://news.heartland.org/newspaper-article/2013/11/11/obamacare-yet-again-shows-more-government-means-worse-private-sector&ei=O52tVaOZNJLLogTfo4rADg&psig=AFQjCNHTr-hfXYz_h3ntzSxmXayiMFlV6A&ust=1437527730183147


More on Human Intervention . . .

Some courts (all N.D. Cal.) have found no autodialer where human intervention is necessary, but none relate to calls

– Texting platform where user enters phone numbers and text content

Luna v. Shac, LLC et al (N.D. Cal. Aug. 19, 2015) (granting motion for summary judgment)

– Apps that sends invitations to join initiated by the user/organizer

McKenna v. WhisperText et al (N.D. Cal. Sept. 9 2015) (granting motion to dismiss)

Glauser v. GroupMe, Inc. (N.D. Cal. Feb. 4 2015)

Consistent with Ruling’s treatment of “Maker of a Call”



Rotary phone

Speed dialing

Predictive dialer

Internet-to-phone

technology

Click-to-dial

Preview dialing

One-click



Compliance Pointers:

– Only call mobile numbers for which you have appropriate consent

Consent is golden!

– Do your diligence and ask your vendor how they plan to comply with the new rules

Be wary of vendors touting “100% compliant” dialing systems

Review contract requirements/indemnifications

– Use single phones unconnected to a PBX that require agents to manually enter telephone digits

– Create separate systems for dialing landline v. mobile phones

– Bolster human intervention elements in your dialing system

– Maintain documentation and policies for when your system is challenged

– Consult with a technical expert to evaluate your current configuration

– Avoid making calls to mobile phones (but may not be practical)

Scrub against wireless databases



Additional considerations:

– Regardless of due diligence and promises that a dialer is not an ATDS, if it in any way has the capacity to be one, it is covered!

– Even if not using an ATDS, do you really want make unsolicited marketing calls/texts to consumers’ mobile phones?

Consider PR issues

Consider more restrictive state laws that require consumer consent to call mobile phones, regardless of how dialed.


31 Reassigned Wireless Numbers

Issue: Whether a caller has liability for calling a telephone number for which she had consent but the number has been reassigned to a new subscriber.

FCC Ruling:

– “Called party” = current subscriber (person assigned and billed) OR non-subscriber customary user of phone (i.e., family or business calling plan)

– Companies are liable for calling reassigned wireless numbers, but get one free pass for the first call made after reassignment

– Rejected proposals to interpret “called party” as “intended recipient”


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCOyyj6KI68YCFUGkiAodw0ENDw&url=http://www.donotcallprotection.com/blog/reassigned-numbers-right-party-verification&ei=UZ-tVazGKMHIogTDg7V4&psig=AFQjCNF5Zn3QTi1OFRkvP54CEtsFoZIY3w&ust=1437528247724890

32 Reassigned Wireless Numbers (cont’d.)

“One Call” Safe Harbor

– To qualify, caller bears the burden of showing:

Had no knowledge (actual or constructive) of reassignment

Had a reasonable basis to believe there was valid consent

What does “one call” mean?

– Caller deemed to have constructive knowledge of reassignment even if caller does not connect to a person or voicemail. Attempts count!!

– Does not apply to wrong or misdialed numbers

– Unlimited period of time to make “one call”



Who does “one call” apply to?

– Single caller = “any company affiliates, including subsidiaries”

– So “two affiliated entities may not make one call each, but rather one call in total”

Bad Faith Defense?

– NONE! Rejects the idea of granting companies a bad faith defense to plaintiffs who knowingly omit disclosure of reassignment

No affirmative obligation for called party to disclose that the called phone number has been reassigned

So current subscribers f reassigned telephone numbers can sit back and accrue $$ with each call



FCC believes the existence of database tools combined with best practices, and a one free pass rule “together make compliance feasible”

How to Comply (according to the FCC):

– Make manually dialed call to confirm subscriber identity

– Listen to name on voicemail

– Send email/mail request to confirm numbers or update contact information

– Use 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”

– Include provisions in consumer contracts obligating them to inform you of when they switch numbers and then sue consumers for violations (yes, really)



How to Comply (according to the FCC):

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

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

– Implement procedures for recording wrong/reassigned numbers received by customer service agents during inbound/outbound calls

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

– 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




– Create a plan and implement processes to address wrong/reassigned telephone numbers

Prepare agents to identify, report, and update wrong/reassigned numbers

Implement procedures to update consumer contact information

Modify telephone scripts as necessary to address wrong/reassigned numbers

Create consistent processes across all platforms and applicable entities

Allow opt-out for wrong or reassigned numbers on IVR

Include “STOP” instructions in all text messages

Include “Reply WRONG if wrong #” in all text messages

Flag questionable accounts and manual dial these numbers

– Train your agents and employees!

– Use available databases that attempt to identify current subscriber

– Use available technology to recognize triple-tones and disconnects


37 Revocation of Consent

Ruling: Consumer may revoke previously given consent at any time by “any reasonable means”

– Called party must “clearly express” a desire not to receive further calls

What does “reasonable” mean?

– Can be oral or in writing

– Examples given: consumer-initiated call or in-store bill payment

– FCC will look at totality of the circumstances:

Whether consumer had reasonable expectation that he or she could effectively communicate a revocation request in that circumstance

Whether caller could have implemented mechanisms to effectuate a revocation request without incurring “undue burden”


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCI6NoZauiMgCFUIyiAodezAE8Q&url=http://pastorspondering.com/revoked/&psig=AFQjCNGHhbqHh0O95Z1kySIMYRLVurDwrQ&ust=1442932900575380

38 Revocation of Consent (cont’d.)

Revocation Principles:

– Revocation applies to both informational and telemarketing calls

– Porting a landline number to wireless does not revoke consent

Consumer’s responsibility to revoke consent

But you still need appropriate consent to call mobile phones!

Other Consent Principles:

– Phone number in contacts alone does not demonstrate consent to make autodialed or prerecorded voice calls to that number

– No TCPA violation when an individual who is not the subscriber or customary user answers the phone due to his or her proximity to those individuals

e.g., passenger in car or houseguest


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCI6NoZauiMgCFUIyiAodezAE8Q&url=http://pastorspondering.com/revoked/&psig=AFQjCNGHhbqHh0O95Z1kySIMYRLVurDwrQ&ust=1442932900575380

39 Revocation of Consent (cont’d.)


– Create policies and procedures to handle revocation requests

Prepare agents to accept revocation requests on both inbound and outbound calls and to update the system accordingly

Prepare agents to accept revocation requests during in-store visits

Create consistent process across all platforms and applicable entities

Allow opt-out on IVR

Consider including “STOP” instructions on all text messages

– Train your agents and employees!

– Good recordkeeping on consent and revocation is essential


40 Maker of a Call

Issue: Who is the maker or initiator of a call for TCPA purposes?

Legal Principles

– Generally need a “direct connection” with the call. (DISH Declaratory Ruling)

– Two types of “direct connections”:

1. Taking steps necessary to physically place a call (i.e., dial or press “send”)

2. Being “so involved” with the placing of a call that you are deemed to have initiated it (even if you did not dial or press “send”)


41 Maker of a Call (cont’d.)

Voice/Texting Apps and Platforms

– Parties that provide a platform for others to place calls or transmit text messages and perform a minimal role in such transmission are not likely to be considered the maker of the call.

– Consider totality of the circumstances:

Who controls the content, timing, frequency, and recipient of the transmission

Are you offering fraudulent spoofing for clients or blocking Caller ID for clients

Are you knowingly allowing clients to use your platform for an unlawful purpose



Ruling: FCC considered petitions asking whether app/texting platform was the maker of a call under three scenarios.

NOT a maker of a call:

– Where platform merely provides its users with the ability to set up auto-replies to incoming voicemails (YouMail Petition)

– Where user of platform decides whether, when, and to whom to send invitational messages through the app (TextMe Petition)

YES, a maker of a call:

– App provider automatically sends invitational texts of its own choosing to every contact in the app user’s contact list with little or no obvious control by the user (Glide Petition)

USER DISCRETION IS KEY!




– For apps and calling/texting platforms

To the extent possible, simply provide the facility through which your clients may place calls or transmit text messages

Provide user with as much discretion as possible (including timing, content, etc.)

– Content especially important

Do not provide clients the ability to mask or block caller ID or engage in spoofing

Consider suspending and/or terminating clients that you learn are using your system for unlawful purposes and document same

– What, if any, oversight is required by the platform provider?

Hands off approach v. monitoring

Proceed with caution!


44 On-Demand Text Messages

Ruling: On-demand text messages do not violate TCPA

– Not telemarketing but “fulfillment of the consumer’s request”

– Initiating text from consumer demonstrates consent

Conditions

– Text message must be requested by the consumer

– One text in response (more than one text requires PEWC)

Does not apply to text alerts or programs!

– Sent immediately in response to a specific request

– Contains only the information requested by the consumer

– No other marketing

Best Practices

– Voluntary disclosures?


45 New Exemption for Healthcare Calls

NEW Exemption for Exigent Healthcare Calls to Mobile!

– Must have a healthcare treatment purpose, “specifically”:

appointment and exam confirmations and reminders

wellness checkups

hospital preregistration instructions

pre-operative instructions

lab results

post discharge follow-up intended to prevent readmission

prescription notifications

home healthcare instructions

– Not Covered: calls regarding account communications, payment notifications, or Social Security disability eligibility

NEW


46 New Exemption for Healthcare Calls (cont’d.)

Conditions to Qualify for Mobile Healthcare Exemption

– “Free-to-end-user” (including counting towards plan limits)

– Only to mobile number provided by patient

– Must provide caller’s name and contact information (at the beginning if a voice call)

– No telemarketing, solicitation, or advertising or accounting, billing, debt collection, or other financial content

– Must be short (generally one minute or less for voice calls and 160 characters or less for text messages)

– Must provide an “easy” means to opt-out

– Must immediately honor opt-out requests

– One message per day, maximum of three per week per specific provider


47 Consent Issues Related to Healthcare Calls (cont’d.)

Prior express consent given to healthcare provider is imputed to a HIPAA-covered entity or business associate acting on the covered entity’s behalf

– Must be healthcare call subject to HIPAA

Insurance-coverage calls not likely covered, as per footnote in FCC’s ruling

– Must be within scope of the consent granted, meaning “closely related to the purpose for which the telephone number was originally provided”

e.g., telephone number provided as part of hospital admission

– Unless instructions to the contrary

Consent may also be provided by a third party in cases where a patient is medically incapacitated (as legally defined)


48 New Exemption for Financial Calls

Categories of exigent financial calls subject to exemption:

– Fraud and identity theft

– Data security breaches

– Steps consumers may take to prevent identity theft after a data breach

But does not include marketing of products to prevent or rectify identity theft

– Money transfers (including steps to get funds and notice of funds receipt)


49 New Exemption for Financial Calls (cont’d.)

Conditions to Qualify for Mobile Financial Exemption

– “Free-to-end-user” (including counting towards plan limits)

– Only to mobile number provided by customer

– Must state name and contact info of the financial institution (at the beginning if a voice call)

– No telemarketing, cross-marketing, solicitation, debt collection or advertising content

– Must be short (generally one minute or less for voice calls and 160 characters or less for text messages)

– Must provide an “easy” means to opt-out

– Must immediately honor opt-out requests

– No more than 3 calls over a 3-day period from single financial institution per account per event


50 New Exemption for Financial Calls (cont’d.)

Industry Petitions for reconsideration

– Original Industry petitions sought broader allowance for urgent situations

– FCC did not go far enough

– American Bankers Association Petition (August 7, 2015)

Seeks elimination of requirement to get number directly from consumers

– Requiring consumer-provision is the same as prior express consent for non-telemarketing calls, effectively rendering the new exemption superfluous

– Particularly important for intended recipients of money transfers who need to know of the transfer, but has no relationship with the financial institution

– Allow callers to seek consumer numbers from reliable sources


51 New Exigent Exemptions – A Pyrrhic Victory?

Still requires provision of wireless number from the consumer

– Same as prior express consent (PEC)

Calls must be free to end user

– Not required for PEC

– Additional logistics and cost

Must include an opt out

– Not specifically required for non-telemarketing calls

Call/text limitations


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCO7k-Yy0iMgCFZIviAod_bUHeg&url=http://tonymartignetti.com/2012/06/nearly-1000-nyc-charities-lose-tax-exemption/&psig=AFQjCNHEjfpNi-iyg01GzNZeCacphXyfDQ&ust=1442934516452232

52 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., [email protected])

– Messages sent from a computer to a mobile phone

– Often start as emails and then converted to texts or enters carrier’s web portal and then converted to text message, both delivered over wireless network

“[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.” (Para. 116)


mailto:[email protected]

53 Prior Express Written Consent Waiver

Reaffirms that written consents obtained prior to the new telemarketing regulations effective October 16, 2013 must conform to the new “prior express written consent” requirements

– Including mandatory disclosure requirements that calls will be made with an autodialer or prerecorded voice and that consent is not a condition of purchase

Limited Waiver

– Retroactive waiver from October 16, 2013 through July 10, 2015

– Additional waiver from July 10, 2015 to October 7, 2015 to get into compliance

– Only applies to petitioners Direct Marketing Association and Coalition of Mobile Engagement Providers, including their members as of July 10, 2015


54 Call Blocking Technology

In response to letter from National Association of Attorneys General signed by 39 Attorneys General

Ruling: No prohibition on carriers or VoIP providers from developing call-blocking technology solutions for both consumer and business subscribers to block individual or categories of incoming calls

– But not required to offer this technology

FCC endorses proposal with caveats:

– Allow solicited calls, such as municipal and school alerts, public safety and law enforcement, and emergency calls

– Provide informed opt-in process by adequately disclosing the risk that certain desired calls may be blocked

– Encourages providers to provide features to allow customers to check what calls have been blocked and to easily report/correct blocking errors


55 Industry Petitions for Review and Reconsideration

Basis of Challenges

– Ruling exceeds FCC authority

– “arbitrary, capricious, abuse of discretion”

– Beyond the intention and purpose of the TCPA

Go back to Congress

Challenged Rulings:

ATDS

Exigent Financial and Healthcare Calls

Revocation

– Not in the TCPA

Reassigned numbers

– Not reasonable, places unfair liability despite best intentions


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&uact=8&ved=0CAcQjRxqFQoTCKyrgcGuiMgCFYKViAod848Anw&url=http://www.petitions24.com/please_dont_put_down_oz_sumartan_tiger_hamilton_zoo_nz&psig=AFQjCNGknjMfAuvhGYhD3kDL5uU1kA-Nyw&ust=1442933001563464

56 Additional TCPA Issues

Vicarious Liability

–DISH Network

Seller can be responsible for the acts of others engaged in violative conduct on its behalf when it exercises control over such actions

–Campbell Ewald

Agency responsible for hiring a third party to transmit offensive text promotions, even if ads are not for agency product/services

–BUT:

Taco Bell

– Parent corporation not responsible for franchisee actions

GE/UTC

– Manufacturer not responsible for acts of authorized resellers


57 Additional TCPA Issues (cont’d.)

User Agreements

– eBay, PayPal

FCC, NYAG and others criticized revisions to user terms that would allow contact with users via cell phone, text and pre-recorded calls.

– Lyft

FCC claimed that consent to use the ride service was conditioned on users agreeing to receive automated text messages and that users could not unsubscribe


58 Thank you! Questions?

Marc S. Roth 212-790-4542

[email protected]

Christine M. Reilly 310-312-4237

[email protected]




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