The following is a brief we issued to clients in anticipation of the new FCC regs governing telephone consent. We provide the information below for information purposes only. This does NOT constitute legal or professional counsel.
Updated Ruling under the TCPA (Telephone Consumer Protection Act) for Mobile and Landline Consent Regulations
Effective October 16, 2013
There are revised rules under the FCC for Cell phone and landline telemarketing calls using auto-dialers and pre-recorded messages. As of October 16th, expressed written consent will be required from the consumer and documented by the seller.
Under the new ruling, the TCPA also identified consumers with an existing business relationship (EBR) to no longer be exempt , and will also require expressed written consent. After October 16th, existing contacts will need to provide written consent to be contacted via their mobile phones for recruitment calls and for their residential landlines if pre-recorded messaging is used.
The challenge right now is the definition of automated telephone dialing systems. It’s deemed to be an automated technology if it has the “capacity” to store numbers and dial them randomly or sequentially. Because it’s so broad it can apply to predictive dialers that auto connect to live telephone agents as well as any equipment that has the capacity even if it’s NOT being utilized.(1)
The agreement defines the consent for cell phone and landlines as follows:
CELL PHONES
- All recruitment calls to cell phones, both text and calls
- Pre-recorded messages to cell phones require an opt-out function prior to and during message (in effect January 14,2014)
Non-recruitment calls do not require consent but do require a prior expressed consent which could be verbal or implied consent without having to provide documentation. However, if those information calls include an upsell or have intent to offer services, property or goods on the call or in the future, this would require written consent.
Mobile providers are exempt from the above, providing charges to do not apply.
LANDLINES
- Pre-recorded messages to residential and business landlines
Exempt are informational pre-recorded messages that are health care related calls under HIPPA as well as non-commercial calls such as political messaging.
MEETING CONSENT REQUIREMENTS
As stated by the TCPA, consent must be a “clear and conspicuous disclosure” and the consent needs to be accessible should proof be required. The FCC deemed that consent under the E-sign Act would satisfy the requirements. Agreements can be obtained by email, website form, text message, telephone keypress, or voice recording.
The following are two examples of web form language that’s been sited under the Active Prospects whitepaper found in the MDT link below as well as one of our current clients.
Active Prospects suggested:
“I hereby consent to receive auto-dialed and /or pre-recorded telemarketing calls from or on behalf of [school] at the telephone number provided above, including my wireless number if applicable. I understand that consent is not a condition of purchase.”
Client using this language:
”By checking this box, you give consent for [School Name] to use automated technology to call and/or text you at the number provided above. Please note that you are not required to provide this consent to make a purchase from us.”
The second challenge is PROOF of consent. It was difficult to find a clear outline of requirements under the FCC documentation. We researched a number or articles around the new ruling and the following is a list of recommendations that seemed consistent among them.
- Name and contact info
- Date and time of consent
- Consumer IP address
- URL of where form was submitted
- Screenshot or visual documentation/ access to forms with consent language (would need to ensure records of all variations over time if the site changes – and if those urls become obsolete, that a copy of them are kept on file should you need to disclosure for proof of consent.)
Disclosure should be placed near the submit button
For Email consent:
- Requires a compliant reply that would include a statement such as “I Agree…” along with their full contact information
- Alternatively, you could direct them to a web page and use the form consent guidelines above
- Document and store proof of consent
Consent by Telephone:
- If automated, voice activation or key pad entry following the disclosure statement which is documented and recorded
- If a consumer is speaking to a live person and they provide their phone number, compliance scripts will need to be in place at that point to ensure consent is received. They could be directed to a web page to provide written consent or if the call is recorded that could be documented proof. I would suspect that voice recording would be cumbersome to administer and track. Certainly, admissions and reception will need a process in place to be compliant.
Affiliate and lead generation sites need to be assessed to ensure they are meeting all the disclosure and consent requirements. This will be interesting…
Sources
- The Impact of the Wireless Consent Rules. FCC Amendments to the Telephone Consumer Protection Act (TCPA) by Mitchel N. Roth, Roth Doner Jackson, PLC http://www.mdtdirect.com/PDFs/apscu_TCPA_guidelines.pdf
http://www.pacificeast.com/resources/pdfs/FCC-12-21A1.pdf
http://performinsider.com/2013/07/legal-tcpa-express-written-consent-requirement-looms-ahead/
http://www.mobilemarketer.com/cms/opinion/columns/15685.html
http://www.ftc.gov/os/2001/06/esign7.htm
http://apps.americanbar.org/buslaw/blt/content/2013/05/article-01-smith.shtml