Are You Compliant with the New FCC Rules?

On Thursday June 18th, the FCC approved a TCPA Declaratory Ruling that is meant to “protect consumers from unwanted robocalls and texts.” The ruling was approved by a vote of 3-2 and the official text was released, and became effective, on Friday July 10th.

So, what does this new policy mean moving forward?

An instrumental part of providing the utmost quality of customer care in the contact center space is compliance with privacy restrictions implemented by governing regulatory bodies, such as the Federal Communications Commission (FCC).

InfoCision has reviewed internal policies and procedures to ensure full compliance with the Ruling and have implemented the most conservative standard to protect our clients, our company and our employees. We also encourage all organizations to make sure any third party vendors they utilize are compliant.

As an industry leading expert in compliance, we are providing a brief summary of the FCC Ruling for your reference.

ATDS (Automatic Telephone Dialing System)                                   ATDS is defined as any device or equipment which has the current or potential capacity with software modifications or additions to store or produce telephone numbers to be dialed randomly or sequentially without human intervention.  The hardware determines whether the equipment is an ATDS or not, i.e. if the hardware configuration cannot dial without human intervention without additional hardware, it is not an ATDS. The definition also includes calls to a set list of numbers using an ATDS.

The TCPA’s express consent requirements for calls to cell phones apply if the calls are made using an ATDS or prerecorded message.

It’s critical when contacting a cell phone number to use a manual dial solution which meets the specific terms required by the FCC.

Re-Assigned Numbers, Called Party and Wrong Number Calls         The TCPA exempts calls made to cell phones using an ATDS or prerecorded message if the “called party” provided prior express (written) consent for such calls.  The FCC has expanded the determination for who the called party is, in situations where the caller intends to call one person but unintentionally reaches another.  This situation could occur primarily when a number has been reassigned without the caller’s knowledge.  According to the FCC, businesses will have only one opportunity to call a reassigned number.

Text Messages                                                                                       Text messages are defined as a call to a mobile number and subject to TCPA consent and dialing requirements.

Remaining compliant is imperative for the respect and safety of your consumers as well as protecting an organization from significant monetary liabilities.

Click here to read more about regulatory compliance standards in the contact center space.

Steve Brubaker began his career at InfoCision in 1985. In his current role as Chief of Staff and as a member of the Executive Team, he is responsible for HR, internal and external communications, and manages the company’s legal and compliance departments. Brubaker is a member of a number of professional organizations, including the DMA and PACE. He also donates his time to serve on several university boards, including the Executive Advisory Board for The Taylor Institute for Direct Marketing at The University of Akron and The University of Akron Foundation Board. He has also been honored with a number of awards and recognitions for his contributions to the call center industry, including the ATA’s highest honor, the prestigious Fulcrum Award.

Is your company prepared for the new TCPA revisions rolling out October 16th?

How to make sure you and your third party vendors are compliant

image_16_politicalEarlier this year several major companies were hit with significant fines for violating the current Telephone Consumer Protection Act (TCPA) law. Papa John’s agreed to pay a staggering $16.5 million dollars as part of a settlement. TCPA litigation has been increasing in recent years and the new TCPA revisions going into effect on October 16 are likely to fuel more litigious activity. As we all get ready for October 16, it’s important to keep in mind the significant monetary liabilities businesses can face under the TCPA, including liability for actions of third-party marketing partners.

ATDS defined, or is it?

Calls made without the use of an Automatic Telephone Dialing System (ATDS), or a prerecorded message are not subject to the TCPA’s consent requirements; however, there has been some uncertainty in the industry regarding what constitutes an ATDS. The term ATDS is defined 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.”  A large portion of the uncertainty stems from the term “capacity” in this definition. The concern has been that courts might interpret the term capacity so broadly that equipment would constitute an ATDS if it could be altered or modified in a manner that would allow it to autodial telephone numbers (even if it did not currently have the ability to do so).

We are beginning to see inconsistency in the case law related to TCPA regulations on cell phones. Of course, InfoCision will maintain the most conservative approach for our clients, as we have a manual dial solution which does not have the capacity to dial predictively.

A recent decision issued by the Northern District of Alabama, in Hunt v. 21st Mortgage Corp., held that a system must have the present capacity, at the time the calls were made, to operate as an autodialer for it to be an ATDS.  According to the Court, equipment is not an ATDS if “substantial modification or alteration” is required for the system to have such capacity. This is an important decision for companies that plan to make calls to cell phones using non-ATDS equipment, and it will be interesting to see whether other courts will adopt a similar interpretation when considering this issue in future cases.

What you need to know about obtaining consent 

As an industry leader and expert in compliance, we have prepared useful tips and sample consent templates to help organizations get ready for this new requirement. To learn more about the FCC TCPA requirement and to access the tips and sample consent templates click here.

InfoCision has already made all necessary adjustments and we encourage all organizations to review how they obtain cell phone numbers to be used for phone or for text solicitation. We also encourage all organizations to make sure any third party vendors they utilize are compliant.

If you have found this information helpful, please leave a comment or question if you want to discuss further.

Also, we will be at DMA2013 in Chicago from October 13 through October 15. Stop by booth #1019 and say hi!

TCPA Legal Action Thrown Out

Recently, I came across a blog post about a TCPA class action lawsuit that was thrown out for being frivolous to say the least.

Without getting into too much detail, a man recently tried to sue Citibank, claiming that its direct marketing efforts were a violation of the federal Telephone Consumer Protection Act. The man claimed that he contacted Citibank in May of 2011 to apply for a credit card. As part of the application process, he gave his cell phone number to the bank and a few days later he received a text message with a promotion for Citi Cards (Citibank’s credit card). That message said he had the opportunity to opt out of future text messages by simply replying with the word “stop.” He did this, and Citibank sent him a final text, confirming that he would no longer receive promotions through the text message program. The man then proceeded to file suit in the Southern District of California, where he argued that the final confirmation text message violated the TCPA.

Now, if the man had opted out of the text message program and continued to receive promotions, I could very easily understand why he would be upset. That would be a direct violation of the law and his rights would have been considered to be infringed upon, but this simply was not the case.  The ruling in this case helps set a precedent and protects the industry from frivolous lawsuits like this in the future.

New Technology in Contact Centers

The teleservice industry is continuing to evolve and as direct marketers, we must adapt to the way consumers choose to connect with us. The digital age is thriving and things like text messages, email and social media are becoming more and more popular mediums of communication with consumers. When I look at this particular case, I am encouraged to see the judge’s decision reflects a balance in protecting the rights of consumer privacy with that of legitimate business interests.

With all of this being said, I think it is important that call centers, like InfoCision, understand our role in all of this. We have to remain compliant and follow the regulations that are in place. Here at InfoCision, we have invested millions of dollars in technology and dedicated resources to ensure all of our campaigns comply fully with all applicable laws and regulations, including the TCPA and the Federal Trade Commission’s Telemarketing Sales Rule (TSR).  We also have to be aware that our industry is unfortunately often under scrutiny. Violations by a few bad actors could ultimately result in more restrictions on our business. The new advances in technology are enabling us to expand consumer choice and create a superior customer service experience.