TCPA Questions and Answers

http://www.cunet.com/blog/2013/09/tcpa-questions-answers/

Thank you to everyone who attended the Understanding & Responding to TCPA Changes webinar on September 24. We’ve already uploaded a video of the presentation, for those that might have missed it, but due to the volume of participation, we were unable to address everyone’s questions during the allotted time. In an effort to respond, we have consolidated questions and are posting the answers below. We’ve taken the liberty of grouping similar types of questions together to make everything easier to understand (I mean, let’s face it: this this is complicated enough already).

Remember, we are not lawyers and this is not intended to be legal advice or a legal opinion. We strongly encourage you to speak with a licensed attorney in your state to ensure you are appropriately prepared for the TCPA changes that go into effect on October 16.

Do the October 16 updates to the TCPA regulations apply to me?

The updates to the TCPA regulations require prior express written consent of the called party to make telemarketing calls or calls that introduce advertisements to cell phones via automated telephone dialing systems (ATDS).

We don’t have autodial capability.

TCPA restricts telephone solicitations via ATDS, artificial or prerecorded voice messages, SMS text messages and fax machines. The TCPA changes, however, apply specifically to ATDS.

We cold call purchased names.

The new TCPA regulations address telemarketing calls to cell phones using ATDS. If you use an ATDS and your cold calls introduce advertisements to cell phones, you will want to ensure your purchased leads are delivered with prior express written consent for you to call them. If they do not, you will need to obtain consent prior to calling them. Email marketing can help you with this task.

We use a third-party vendor to respond to our inquiries.

When you contract a third-party vendor, you are responsible for their actions. Make sure your third-party vendor is in compliance with all TCPA regulations.

I’m a third-party vendor.

If you are making outbound calls using ATDS to cell phones, you need consent regardless of whether you are first- or third-party in the transaction. However, if you are calling as or in the name of the first-party, we suggest you consult an attorney in your state to determine whether multiple entities need to be expressly provided prior express written consent.

I work at a state agency.

The new TCPA regulations apply when you introduce an advertisement via ATDS to a cell phone. If you are introducing an advertisement, the new regulations apply. If you are not introducing an advertisement, the new regulations do not apply. However, we recommend you contact a lawyer to learn if there are special exclusions for state agencies.

We manage State Health Exchanges (under the Affordable Care Act).

Same answer as above.

Do the new TCPA regulations apply to:

Leads obtained prior to October 16, 2013?

The new TCPA regulations apply to all calls made after October 16, 2013, regardless of when the lead was obtained. As of October 16, leads that have not provided prior express written consent are considered stale and can no longer be called by ATDS. We recommend email marketing to these leads to request prior express written consent.

Business-to-consumer transactions?

The TCPA changes apply to all calls that introduce advertisements via ATDS to cell phones, including B2C transactions.

Business-to-business transactions?

The new TCPA regulations apply to B2B transactions.

All phones?

On the dialer end: The new TCPA regulations apply to all systems with autodialing capabilities.

On the recipient end: The new regulations apply to all cellular phones (with exceptions for emergency calls). It also applies to landlines if the caller is using prerecorded messages to contact the landline subscriber.

Click-to-call buttons?

Click-to-call buttons result in an inbound call. There are no new regulations for inbound calls. However, if instead consumers submit a phone number and click to request a call from you, you will need prior express written consent to make that phone call (if it is to a cell phone).

Phone numbers that were changed after consent was provided?

Express written consent is granted for a specific telephone number, and it is recommended that records are kept for a minimum of 5 years. For specific instances, such as changed phone numbers, we recommend you consult with a lawyer in your state.

How is ATDS defined?

An automated telephone dialing system is defined as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. This includes predictive dialers, power dialers, preview dialers, click-to-call technology and anything that can dial number without human intervention.

Are all systems considered “capable” of automated dialing?

No. For instance, a one-line phone that you would typically find in a residence that is not connected to any additional dialing software, does not have automated dialing capabilities.

Are there any entities that can analyze and guarantee you have or do not have an ATDS?

We do not know of any entities offering this service. Since the determination of whether the nuances of a particular system constitutes an “ATDS” are continually addressed by federal courts, attorneys who stay current with courts’ decisions would likely provide you the best advice regarding your specific system. Ultimately, a court would have the authority to determine how to classify your phone system in the event of litigation.

Note that disabling autodialing capabilities does not preclude the phone from the TCPA regulations because the phone is still capable of autodialing.

How is prior express written consent defined?

Prior express written consent is a written agreement bearing the signature of the person called. It may also be electronic (for example, a voice recording or an online form), in compliance with the E-Sign Act. Prior express written consent must include the following five elements:

Authorizes seller to deliver or cause deliver of advertisements or telemarketing messages using ATDS to specific cell phone number
Cites the entity (or entity on whose behalf the call is made) granted consent
States that consent is not required as condition of purchase
Includes signature (E-Sign is acceptable) of the called party
Clearly and conspicuously discloses items 1-4.

If a student provides their cell phone number, does that count as consent?

No. Unless express written consent (as outlined above) is requested and received, you do not have consent to call a number that was provided.

Can a checkbox provide express written consent, or does there need to be yes/no answer choices?

The E-Sign Act provides several ways to provide an electronic signature. Our position is that a “checked” checkbox (that is not pre-checked) is sufficient to provide express written consent, as long as it is accompanied with the language above and is clear and conspicuous. A question with yes/no choices also works to obtain consent.

Can express written consent be obtained via a pre-checked box (that would be manually unchecked if consent is not provided)?

Outside of the five elements listed above, prior express written consent is not defined
. , However it is recommended by some that a checkbox which requires action better delivers “express” consent. Our view is that intake forms should leave the check box “unchecked,” forcing the consumer to choose is a more conservative approach, since a pre-checked box might fail the clear and conspicuous standard of the regulation.

Does a submit button without a check box provide consent?

Again, outside of the five elements listed above, how one obtains prior express written consent is not defined. We recommend you work with your attorney to determine what you want to require for consent.

Is opt out language required? If yes, where does it need to appear?

The individual who provided consent may request (via telephone or otherwise) to be placed on your internal DNC list at any time. This revokes any consent received prior to the consent.

In addition, the new opt-out requirements that went into effect on January 14, 2013, require artificial or prerecorded telemarketing messages to include an automated interactive (voice or keypress) opt out mechanism.Loeb & Loeb has produced an excellent presentation (PDF) regarding this.

Do you have an example of a compliant script to obtain consent?

Data lead:

“[Name], do you agree that you may be called by [SCHOOL] regarding educational services via an automatic telephone dialing system at [telephone number]. You are not obligated to agree to receive such calls in order to receive or purchase services from this school.”

Note: If this individual may be called by multiple parties (including if the lead may be sent to multiple schools), consent must be requested for each school. This can be done by inserting multiple parties into the script where “school” is currently located and changing “this school” to “these schools” or “these parties” at the end of the script.

Hot transfer to school:

“[Name], do you agree to be transferred to and that you may be called in the future by [SCHOOL] regarding educational services via an automatic telephone dialing system at [telephone number]. You are not obligated to agree to be transferred or be called in order to receive or purchase services from [SCHOOL].”

Affiliate transfer to CollegeQuest:

“[Name], do you agree to be transferred to and that you may be called in the future by CollegeQuest regarding educational services via an automatic telephone dialing system at [telephone number]. You are not obligated to agree to be transferred or be called in order to get information from CollegeQuest.”

Do you have an example of approval agreement language?

The following language is used on CollegeQuest.com, a higher education inquiry generation site owned and operated by CUnet:

By clicking the submit button, I agree to be called on behalf of [SCHOOL] or CollegeQuest, using an automatic telephone dialing system at the phone number(s) provided on this form. All calls placed will be regarding educational services that you are requesting. I understand I am not required to provide consent to receive services from this/these school(s) or CollegeQuest.

As an affiliate, do you need to secure consent for yourself and for your client?

If both parties will be making outbound calls, both parties need prior express written consent.

Is there a way for prospects to provide consent to receive text messages but not phone calls?

We recommend two separate consents on the page, one for phone and one for text.

Do the TCPA changes impact existing customer relationships?

If you have an existing business relationship with a customer, do you still need consent?

Prior express written consent is needed for all calls made via ATDS to a cell phone to introduce an advertisement, regardless of prior relationship. An existing business relationship does not automatically grant consent.

How do the TCPA regulations apply to businesses sending text messages to existing customers?

Existing TCPA and FCC rules ban text messages sent to mobile phones via ATDS unless you have prior express written consent to send the message or the message is sent for emergency purposes. In addition, unwanted commercial messages sent to mobile phones are banned by the CAN-SPAM Act.

What happens if we don’t have consent?

If a lead checks “no” to the express consent language, will schools still purchase the lead?

Individual schools will make individual decisions regarding their purchase of leads that are not delivered with prior express written consent.

If a school purchases a lead that did not provide consent and then calls the student prospect using an ATDS, who is liable?

The dialer is ultimately responsible for dialing a cell phone without prior express written consent. However, we encourage you to speak with a lawyer in your state to confirm you are protected in a situation like this.

If lead buyers reject leads that do not provide express written consent, does this violate the TCPA amendment that prohibits denial of service to the consumer?

Because a student prospect may still obtain information directly from the school, CUnet takes the position that a school rejecting a lead because it does not come with express prior written consent is not in conflict with the TCPA amendment that prohibits denial of service to the consumer.

If a consumer calls in to our IVR and the call is dropped, can we call her back?

If you do not have prior express written consent, you are using an ATDS and you are calling a cell phone, you will be in violation of the new TCPA regulations regardless of the previous inbound call. It is recommended that you request consent at the start of an inbound call to avoid this situation.

If a consumer calls us and is directly connected to a client, can we make a thank you confirmation call to that consumer?

Assuming you are using an ATDS and the phone number may possibly be a cell phone, you cannot make a thank you confirmation call unless you have prior express written consent to do so.

If a consumer makes an inbound call and leaves a message, can we call him back?

Again, unless you have prior express written consent to make the outbound call, you are in violation if you place a call to a cell phone via an ATDS regardless of the events leading up to this moment. You may wish to include a feature on your answering system to provide the disclosure and allow the individual to provide the required consent on the answering system.

How much of an impact do the new TCPA regulations have on inquiry generation?

CUnet implemented consent language on August 1, 2013. Since this date, we have not seen any changes to inquiry volume or quality. However, as a result of the enhanced call monitoring now in place (CallMiner), we anticipate beneficial changes. From a school perspective, we expect to see an increase of high-quality prospective students with real intent, fewer instances of fraud, a reduction of non-qualified prospects and more time spent with the best candidates. Ultimately, we hope the new TCPA regulations will result in increased transparency, improved quality and better partnerships.

CallMiner Questions

Are CallMiner transcripts available for five years for record purposes?

CallMiner is not a call retention solution or a call repository and does not retain the call recording for an extended period of time. The metadata associated with a call with remain in CallMiner for analytics and reporting purposes.

CUnet retains call recordings for five years for all instances during which CUnet was responsible for obtaining prior express written consent by phone.

For data leads, Sparkroom stores the data that confirms whether or not a lead includes prior express written consent and Sparkroom Monitor stores daily screenshots of all affiliate inquiry forms that have been made visible to CUnet. This information is stored for a minimum of five years.

How much does CallMiner cost?

We recommend you contact CallMiner directly to discuss their products and solutions. They can be reached at 781-547-5666.

Collections Industry Questions

Do the TCPA regulations apply to companies making calls to collect money owed to them from their customers?

In September, a federal court in Pennsylvania ruled that debt-collection calls are not impacted by TCPA, regardless of the phone type being called. However, the FCC does not exclude debt-collection calls from TCPA regulations. We recommend contacting an attorney in your state to better understand how the existing and upcoming regulations impact your business.

If a customer owes my company money and a third-party vendor calls regarding the collection on my behalf, do the TCPA regulations impact me?

Again, we recommend working directly with an attorney in your state to get answers to questions about how TCPA impacts debt-collection.

Are messages informing a person of a new credit or debit card issuance considered telemarketing? Do the TCPA regulations apply to these messages?

We recommend you seek the advice of an attorney for clarification for the specifics related to these calls.

This presentation is not offered as and does not constitute legal advice or legal opinions. It is offered only for general information and educational purposes. The material in the presentation is intended, but not promised or guaranteed, to be current, complete or up to date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between you and CUnet, CallMiner or any of their affiliated companies, officers, employees, agents or attorneys. You should not act or rely on any information contained in this presentation without first seeking the advice of a licensed attorney in your state.