Issues around Telephone Consumer Protection Act and Mobile Dialing

October 16, 2013.

Ask anyone working in a marketing department and a contact center if this date means anything and you likely get a variety of responses.

For most, it was a date that was white boarded and preparations were likely started back in 2012 when the FCC made some changes to the Telephone Consumer Protection Act (TCPA) guidelines. For others, it may have been a mad dash as they were still caught flat-footed and needed to play catch-up.

So what changes did the Federal Communications Commission (FCC) implement on October 16, and what would the impact be?

First, the FCC has clearly defined what a telephone call is. "A telephone solicitation is a telephone call that acts as an advertisement. The term does not include calls or messages placed with your express prior permission, by or on behalf of a tax-exempt non-profit organization, or from a person or organization with which you have an established business relationship." ¹

Secondly, the FCC has two laws that deal directly with mobile users. The TCPA and the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, address Spam and the use of an autodialer, to make those calls to a mobile user. Please note that the FCC considers text messages as calls. Marketers must be aware of what the potential impact is as the FCC has clearly defined its expectations. This is made clear in the following.

Restrictions on use of automated telephone equipment

According to the TCPA, it shall be unlawful...(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 initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)... C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement...(D) to use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously. ³

So let's take a further look at two items and we'll start with (A) to make any call. Using the definitions 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. Clearly this affects the contact center business operator. The FCC has the ability to issue warnings and has, and will, impose fines to any contact center that may be suspected of running afoul of the law.

For many, this raises conflicting business needs: remaining in compliance while achieving cost containment and operational efficiencies. A call center with thousands of cell phone numbers in the database cannot afford to call all of these accounts manually and still achieve a positive yield per account. On the other hand, using an auto-dialer puts these call centers at risk for TCPA litigation.

One solution that has shifted to the top has been business process applications that enable more efficient manual dialing. One example is Intelligent Mobile Connect from Interactive Intelligence, which utilizes ACD and PBX functionality coupled with Interaction Process Automation. This business process application does not include an outbound dialer, and it does not have the capacity to auto dial. Rather, the application's desktop client presents phone numbers to the agent who can click-to-call each number. The application can be deployed so a single agent clicks on the client to place numerous and continual outbound calls - enough to statistically result in right party contacts for the number of available agents.

As previously mentioned (B) to initiate any telephone call..., prior express consent must be in writing. With that explanation is a very important element... that of a defined "established business relationship."

Again the FCC provided a definition. Established business relationship means "a relationship between a seller and a consumer based on:

(1) The consumer's purchase, rental, or lease of the seller's goods or services or a financial transaction between the consumer and seller, within the eighteen (18) months immediately preceding the date of a telemarketing call; or

(2) The consumer's inquiry or application regarding a product or service offered by the seller, within the three (3) months immediately preceding the date of a telemarketing call." ³

The FCC has also requires written consent to all telephones including cell phones. This means that that, if required, a marketing caller must be able to produce documentation of the signature of the person to be called, the phone number being called and agreement that contact be made. ⁴

So why should the contact center be concerned about the TCPA and contacting its mobile users? As mentioned earlier, the FCC has the ability to issue warnings or impose fines. The TCPA allows for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited calls or messages. With the potential of tens of thousands of calls being made in a twelve hour period, the cost for not playing by the rules could be very expensive.

Footnotes:

¹ Source: Guide Unwanted Telephone Marketing Calls http://www.fcc.gov/guides/unwanted-telephone-marketing-calls

² Source: 47 USC § 227 - Restrictions on use of telephone equipment http://www.law.cornell.edu/uscode/text/47/227

³ Unwanted Telephone Marketing Calls http://www.fcc.gov/guides/unwanted-telephone-marketing-calls

⁴ Giving Your Consent https://www.fcc.gov/guides/spam-unwanted-text-messages-and-email

This paper is sponsored by Interactive Intelligence.