Representatives from the Federal Trade Commission, Federal Communications Commission, the US Senate, and various industry attorneys and private brands converged in Washington D.C. last week to learn from each other about compliance hurdles and solutions surrounding multi-channel marketing in a highly regulated environment. Topics included the TCPA, TSR and other privacy-related laws and regulations. Among other topics important to CCC and its clients, panels addressed TCPA lawsuits and the pending PACE/ACA appeal in the DC Federal Circuit Court, scheduled to undergo oral arguments in a few short weeks. A representative for the FTC stated, when asked, that she was very concerned with certain new technology, including both avatar ("soundboard") and ringless voicemail messaging, and that we can expect new action regarding avatar technology in the very near future.
On September 22, members of the U.S. House of Representatives (Communications & Technology Subcommittee of the Energy & Commerce Committee) convened a meeting to discuss desperately needed, common sense TCPA reform. The tide of TCPA lawsuits and class actions appeared to be the primary concern. Committee members agreed that common-sense solutions were needed both to protect businesses and consumers. Whether the TCPA will actually be amended any time soon is yet to be seen, but the fact that our national Congress is discussing the issue is encouraging.
Learn how to manage your collections portfolios through modernized buy sell agreements, electronic transfers of data and docs, account scrubs and searches, IVR processes, call scripts, email and text communications and document their practices for the three year document retention period. With the new rules, come new opportunities and this topic will focus on how you can best embrace your organization's response to the new world of debt collection, meet the DBA certification requirements and distinguish yourself from the pack.
Members of the class eligible to receive settlements will include US residents to whom Gannett, or anyone acting on Gannett’s behalf, placed or caused to be placed a call to such person’s telephone number when it was assigned to a cellular telephone service - using any automatic telephone dialing system or an artificial or prerecorded voice - without prior express consent of the called party, between January 2, 2010 and August 4, 2016. Gannett is a large media and marketing company with a portfolio of 82 newspapers. Plaintiffs allege Gannett made numerous autodialed calls to consumer cell phones without first obtaining prior express written consent from the called parties. Gannett denies the calls were illegal, but opted to resolve the case by settlement anyway. Apart from the $13.8 million monetary component, Gannett has also agreed to revamp its internal compliance systems and provide new training to key personnel.
This week the FTC announced that its FY 2017 fees for accessing the national Do-Not-Call database will be mildly increased to $61 per area code, or $16,714 for the entire national file. Interestingly, the fee for accessing an additional area code for a half year will remain at just $30. The FTC made the change per their obligations under the DNC Registry Fee Extension Act of 2007. By way of review, sellers must obtain a subscription account number ("SAN") and purchase all area codes into which they will call, unless they have an exemption such as well-documented written consent or an established business relationship. Sellers and their telemarketers may engage outside scrub/suppression vendors to perform the actual scrubs, once they have a SAN and have paid for their area codes. Non-telemarketing calls are not subject to the consumer DNC list, but use caution as "telemarketing" is defined broadly. The fee increase takes effect on October 1, 2016.
Recall that both the TCPA and TSR provide a limited "safe harbor" defense against certain law violations. For example, companies who violate DNC laws but who can show they had good procedures and training in place, may be shielded from monetary fines. In order for you to claim the DNC safe harbor defense in a TCPA/TSR case, you must have the following in place before you are sued:
(1) establish and implement written procedures to comply with do-not-call restrictions;
(2) train personnel, and any entity assisting in compliance, in the written procedures;
(3) monitor and enforce compliance with the written procedures;
(4) maintain an entity-specific DNC list;
(5) use a process to prevent telemarketing calls to numbers on the national and entity-specific/internal DNC lists.
How better to implement, train and enforce your internal DNC policies than to require agents and floor managers to online compliance trainings and pass compliance tests? Store logs showing when your personnel underwent the training and what their testing scores were. For agents who don't meet minimum standards, retrain and retest until they are proficient in your DNC procedures. Agents need to be able to handle a DNC request properly, for example, and disposition a call so that someone isn't called against after opting out. Get your training and testing in place and be better prepared to beat that TCPA/TSR claim when it knocks on your door!
Fortunately, DNC.com has a turnkey training app for supervisors and agents that you can use to bolster your safe harbor. Check it out today and add it to your done pile.
On August 19, 2016, the FCC hosted the first meeting of the Robocall Strike Force, an industry-led group that is committed to developing comprehensive solutions to prevent, detect, and filter unwanted robocalls. Robocalls and telemarketing calls are the number one source of consumer complaints received by the FCC. Following a call to action by FCC Chairman Tom Wheeler (http://go.usa.gov/xrTfm), industry leaders moved to form the Strike Force to expeditiously address consumer concerns with robocalls and deploy anti-robocall solutions.
Click here for more info including a video of the actual strike force meeting.
On August 11, 2016, the FCC released long awaited behavioral rules and definitions clarifying Congress' newly passed exemption for calls relating to government-backed debts. As part of Congress' 2015 Bipartisan Budget Act, they wrote themselves (the government) a TCPA exemption from a number of the autodialer and consent rules, including the rule requiring express consent for the calling of cell phones on an autodialer. As part of that exemption, Congress ordered the FCC to write behavioral rules to further define and flesh out the new statutory exemption. Congress gave the FCC a deadline of 9 months from the passing of the legislation containing the exemption. Earlier this month, the FCC released a 66-page Order containing the new rules. The FCC has a mandate to create administrative regulations and orders to interpret and clarify the TCPA. Among other things, the August 11 Order: defines the meaning of "covered calls;" defines "solely to collect a debt;" provides limits on the volume of exempt calls; provides time of day ("curfew") rules; clarified that the calls may be made by the creditor or its contractor; and provides opt-out rights and affirmative disclosure requirements. Government contractors who call on delinquent government-backed debt, such as certain student loans and mortgages, for example, should carefully review this Order to determine if they are affected. Covered contractors may safely take advantage of this exemption so long as the follow the new behavioral rules. Interestingly however, some of the Order's provisions are contradictory to a recent FCC Declaratory Ruling exempting the government and its authorized agents from the TCPA in an even broader way. The July, 2016 Broadnet ruling appears to have provided greater rights for government callers generally and it is not yet certain how the two FCC actions may be reconciled.