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Genesis recommends, that you obtain and review all legal telemarketing information knowledge from a law license professional regarding Federal, State, and Municipalities, telemarketing regulations on how they affect your business operations.

Federal Court Limits Scope of TCPA's Cell Phone Rules - 9.25.13

The Telephone Consumer Protection Act (TCPA) prohibits the use of an "automatic telephone dialing system" (ATDS) to call a cell phone without the called party's prior express consent. Effective October 16, 2013, prior express written consent is required to use such equipment to make telemarketing calls to cell phones.

Calls made without the use of an 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).

A recent decision issued by the Northern District of Alabama, in Hunt v. 21st Mortgage Corp., however, takes the opposite approach. Specifically, the Court held thata 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.

Amended FCC Regulations Become Effective in One Month -- Are you Ready? - 9.16.13

Last year, theFederal Communications Commission (FCC) adopted significant amendments to its Telephone Consumer Protection Act (TCPA) regulations. The last, and most significant, changes adopted by the FCC are set to take effect on October 16, 2013.

Under the amended regulations, "prior express written consent" is required for: (1) telemarketing calls placed to cellular telephone numbers using an automatic telephone dialing system (ATDS); and/or (2) prerecorded telemarketing messages sent to cellular or residential telephone numbers. To obtain sufficient written consent, the following criteria must be met:

  • Must be an agreement in writing bearing the signature of the person providing consent (pursuant to the E-SIGN Act, an electronic signature is sufficient)
  • The agreement must include the telephone number to be called
  • The agreement must clearly authorize the seller to call the person using an ATDS or prerecorded message (as applicable) for telemarketing purposes
  • The agreement must include a clear and conspicuous disclosure that: (a) by executing the agreement, the person authorizes the seller to make telemarketing calls to the person using an ATDS or prerecorded message; and (b) that the person is not required to sign the agreement or provide consent as a condition of purchasing any goods or services.

The amended regulations do not change the requirements for non-telemarketing calls made to cell phones using an ATDS and/or prerecorded message.

Effective October 16, 2013, businesses have two options for making telemarketing calls to cell phones in compliance with the TCPA: (1) initiate calls using equipment that does not constitute an ATDS; or (2) obtain the called party's prior express written consent before the call is made. Calls made in violation of the TCPA are subject to civil penalties of up to $16,000 per call and/or private lawsuits (including class actions) to recover up to $1,500 per call. Given these risks, we strongly recommend consulting with your legal counsel prior to initiating any calls to cell phones.

New Auto Dial Rules 2.16.2012

Yesterday, the Federal Communications Commission (FCC) approved a Report and Order that adopts significant amendments to its Telephone Consumer Protection Act (TCPA) regulations (Amended Regulations). The Amended Regulations impose additional requirements pertaining to prerecorded telemarketing messages and/or telemarketing calls made to cell phones. The regulations also include new call abandonment rules. Significant changes include the following:

1) Autodialed Calls and Prerecorded Messages to Cell Phones. No telemarketing calls may be made to a consumer’s cell phone using an automatic telephone dialing system (including a predictive dialer) or prerecorded message unless the consumer provided “prior express written consent.” Written consent was not previously required.

• The requirements for obtaining prior express written consent mirror those required by the Federal Trade Commission (FTC) for prerecorded sales messages.

• Pursuant to the E-SIGN Act, an electronic signature (including a voice recording) is sufficient to constitute express written consent if all other requirements are met.

• The requirements for informational and other non-sales calls made to cell phones have not changed. These calls may be made as long as the call recipient has provided “prior express consent” to be contacted at that number.

2) Prerecorded Messages to Residential Numbers. Prerecorded telemarketing messages may no longer be sent to residential numbers without the call recipient’s prior express written consent.

• This amendment eliminates the previous exemption, which allowed prerecorded messages to be sent to a consumer’s residential number if the caller had an established business relationship with the consumer.

• The requirements for informational and other non-sales calls made to residential numbers have not changed. Consent is not required for such calls.

3) Automated Opt-Outs for Prerecorded Messages. All prerecorded telemarketing messages must include an automated, interactive voice and/or key-press-activated opt-out mechanism that allows consumers to make an internal do not call (DNC) request. The mechanism must automatically add the consumer’s number to the caller’s internal DNC list and immediately terminate the call. If the message is left on an answering machine or in a voice mailbox, the message must provide a toll free number that enables the consumer to connect to the automated opt-out mechanism.

4) Abandoned Call Rate and Messages. Telemarketers must measure their call abandonment rate over a 30-day period for a single calling campaign. If campaigns last more than 30 days, the rate is calculated separately for each successive 30-day period. Additionally, all abandoned call messages left during a telemarketing campaign must include the same automated opt-out mechanism required for prerecorded messages.

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One notable and unfortunate aspect of the Report and Order is the discrepancy between the commentary and the final rules. The commentary indicates that the Amended Regulations “require prior express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and residential numbers.” The FCC has previously held that a predictive dialer constitutes an automatic telephone dialing system; therefore, this language implies that predictive dialers cannot be used to make telemarketing calls to residential numbers without prior express written consent. The actual rule language, however, contradicts this interpretation. The Amended Regulations only require prior express written consent for: (a) prerecorded telemarketing messages sent to cellular or residential numbers; and (b) autodialed calls (i.e. calls made using a predictive dialer) placed to cell phones. Autodialed calls made to residential numbers are not subject to the prior express written consent requirement unless an artificial or prerecorded voice is used to deliver the message.

While the focus of the rule changes will understandably be on requirements that go beyond those imposed by the FTC’s Telemarketing Sales Rule, it is also important to be mindful of the impact other changes will have. For example, although the new requirements for prerecorded messages sent to residential numbers mirror the FTC’s existing requirements, non-compliance with the Amended FCC Regulations creates an additional layer of risk because the TCPA provides a private right of action. With the proliferation of class action TCPA cases in recent years, private lawsuits pose a significant risk to telemarketers that violate the TCPA and/or its regulations.

National Do Not Call Registry Safe Harbor Policy

 

The Purpose:

 

Now that the fate of the National Do Not Call Registry (Registry) lies in the hands of the 10th Circuit Court of Appeals and Registry enforcement efforts have been undertaken by the Federal Trade Commission (FTC), the Federal Communications Commission (FCC) and state Attorneys General, practical questions of compliance have arisen as telemarketers begin scrambling to keep up with the fast pace of developments in this area.

 

As direct marketers of goods and services consider their options in moving forward with telephone solicitations, there are several key factors that are critical from a do not call compliance perspective under the FTC’s Telemarketing Sales Rule (TSR) and the FCC’s rules under the telephone Consumer Protection Act (TCPA) rules. Generally, in order to ensure compliance, it is imperative you’re your company:

  • Develop, implement, and follow a written Do Not Call Policy
  • Train personnel in personnel in procedures established as past of the Do Not Call Policy
  • Scrub calling list against the registry as well as any state lists that remain
  • Become knowledgeable about the parameters for relying on the existing business relationship exemption, in general, and more specifically, for affiliates
  • Ensure compliance with compliance with company-specific internal do not call obligations
  • Keep accurate and detailed records of compliance
  • Appoint a specific person to be a “Chief Telemarketing Officer”

 

Do Not Call Policy is key to qualifying for a SAFE HARBOR:

 

Under both TSR and TCPA Rules, there is a SAFE HARBOR pursuant to which telemarketers will not be liable for calling a number listed on the Registry. In order to be protected as a SAFE HARBOR, the call that was made to the number on the Registry must be the result of an error and the telemarketer must be able to demonstrate that, as part of its routine business practice:

  • It has established and implemented a written policy setting forth procedures for compliance
  • It has trained its personnel, and any other entities assisting in compliance, in the procedures established as part of such written policy
  • It has maintained and recorded a company-specific list of telephone numbers that must not be called
  • It uses a process to prevent calling any numbers on the Registry
  • It monitors and enforces compliance with the written policy on an on-going basis

It is necessary first step to establish compliance and without it, telemarketers will never be able to meet the remaining prongs of the of the safe harbor test.

 

The written policy must at least set forth the relevant aspects of how the telemarketer will implement procedures for, and abide by, the requirements of the Registry.

The Policy should at a minimum, address the following:

  • Subscribing to and paying for the use of the Registry.
  • Downloading telephone numbers on a timely and 31 day basis from FTC’s website at https://telemarketing.donotcall.gov/.
  • Procedures for accepting and recording company-specific do not call requests, and maintaining a company-specific do not call list (Company Specific List)
  • Time frame for responding to requests to be placed on the Company Specific List
  • Scrubbing calling lists against the Registry and Company Specific List
  • Procedures for dealing with a person who claims his or her number is on Registry or the Company Specific List.
  • Procedures for dealing with an inadvertent call to a person whose number are on the Registry or the Company Specific List.
  • Training personnel and telemarketers to comply with requirements of the Registry and Company Specific List.
  • Use of the Registry list and the Company Specific List for other purposes (the Registry list must not be used for any purpose other than preventing telemarketing calls to the telephone numbers on the Registry).
  • Ensuring that calls are not made to numbers on the Registry and the Company Specific List and those procedures exist for monitoring compliance.

 

Do Not Call Safe harbor Policy is a guide and road map:

 

It can be used as a road map for working out the specific technical details of how to comply. It should be used as a general guidance for all internal and external operations that are implicated in telemarketing activities so that specific measures and actions of the telemarketer will match the general principles of their policy; i.e. use of software programs to alert sales or customer service representatives that a particular individual should not be solicited – a change normally handled by the Information Technology department.

 

Calling Time Restrictions:

Unless a telemarketer has a person’s prior consent to do otherwise, it is violation of the rule to make outbound telemarketing calls to the person’s home outside the hours of 8 a.m. and 9 p.m. and some states have limits to 8:30 pm local time.

FTC TSR Completing a Sale via Predictive Dialer and the Consumer:

 

The FTC TSR requires that when authorization of a transaction is completed via oral verification, you shall record that conversation.

FCC requires that all carrier-related orders, such as long distance, internet, IP, and cable services, whether from predictive dialing, telemarketing, direct sales or otherwise, must be verified through one of the three (3) methods: 1. consumer signature on an authorization form also know as Letter of Agency; 2. electronic authorization, usually resulting from a consumer-initiated call to a toll-free number; 3. verification by an independent third party.

 

Verification is required for all outbound and inbound Predictive dialers and other telemarketing, Internet-based and all other orders. All carriers will need “clear and convincing evidence of a valid authorized carrier change” in case of slamming allegations.

Chief Telemarketing Officer is Responsible and in Charge:

 

Of course, all of the foregoing is meaningless if someone is not appointed to oversee and ensure compliance with the FTC, TSR, TCPA rules and state telemarketing laws. A responsible person must be appointed to monitor and ensure compliance with the company’s Do Not Call Policy and applicable laws; i.e. (Chief Telemarketing Officer). This person must be familiar with the telemarketer’s practices and procedures and the telemarketing laws and act as a central point of contact for coordination and compliance questions. Without designing such a person, adherence to applicable regulations and policies is likely to lapse, and risk of regulatory action is likely to rise. Please name your Chief Telemarketing Officer.

 

Train Personnel and Vendors:

 

Telemarketers must periodically train their own personnel, and any telemarketing vendors acting on their behalf, with respect to specific practices and procedures that are necessary to comply and ideally, the federal and state laws that that impact upon telemarketing activities. This training is necessary for compliance with the do not call SAFE HARBOR. After training, all personnel and vendors will acknowledge that they have been educated.

 

Scrub Calling Lists:

 

While the Do Not Call SAFE HARBOR is helpful, by no means can telemarketers rely upon it as a substitute for actually scrubbing calling list against the telephone numbers on the Federal and State DO NOT CALL registries and on your Company Specific DO NOT CALL List.

 

In order to comply with FTC, TSR, FCC, PUC, and TCPA Rules; therefore all lead lists are required to be scrubbed against the Federal, State DO NOT CALL Registries, and Company Specific Lists.

 

Scrub your lead lists at least every 31 days as amended by Revised Final Rule by the FTC, FCC, PUC, TSR rules regarding the Registries.

 

Exception to scrubbing would be in the event you have web landing pages, and the prospects fill out their names, email addresses, and phone numbers to contact them, you must keep a written record of each person to prove the prospect requested to be contacted.

Scrubbing Software:

 

Scrubs your lead lists for Federal, States, Cell Phones, and Landlines converted to Cell Phones using PossibleNow.com Software. Do Not Call List Scrubber

Vendor: www.PossibleNow.com 800.585.4888, 4400 River Green Parkway Suite 100, Duluth, GA 30096. Upload your lead list into online software, it checks the DO NOT CALL Federal, State, and Cell Phones, Landlines converted to Cell Phones, then you get the lists you can call and who you can not call.

National Do Not Call Registry Company Profile:

Provide info on your company including name, address, city, state, zip code and phone number.

Mortgager broker and Correspondent lender in California and Florida and as such all of business are conducted with banks, federal credit unions and federal savings and loans.

Authorized Representative:

Organization ID:

Representative Password and Download Password:

Download area codes for CA and FL on date:

Order Number

Subscription Account Number (SAN)

 

Go to https://telemarketing.donotcall.gov, click download into computer save on desktop, or download direct from safecaller software at least every thirty one days.

State Specific Lists:

 

Two important issues to be aware:

 

  1. States have been given approximately eighteen months to download any existing state do not call registries into the Registry. There are several states that maintain their own The following are Specific State Lists: Alaska, Colorado, Georgia, Idaho, Indiana, Florida, Louisiana, Massachusetts, Missouri, Mississippi, Oklahoma, Texas, Wisconsin, Wyoming
  2. Even in those states which have merged their list into the registry, state regulators retain their ability to enforce do not call violations made to state residents under state specific statutes, even where a state do not call list was folded into the registry.

 

Company Specific List Do Not Call Obligations:

 

FTC, TSR, FCC, PUC, and TCPA Rules require you to maintain a Company Specific DO NOT CALL list. Be sure to scrub the updated Company Specific List at least every thirty one days.

 

Keep Records

 

TSR requires records to be kept for a period of twenty four (24) months and under the TCPA Rules, the retention period, for records of those consumers who have requested not to be called for five (5) years.

 

Therefore, a comprehensive company document retention policy relating to telemarketing records must be put in place and followed. Detailed and accurate records may be a telemarketer’s only defense against consumer complaints relating to a Do Not Call violation.

Legal Compliance Laws:

  • Telephone Consumer Protection Act (TCPA), Title 47, Chapter 5, Subchapter II, Section 227
  • Federal Trade Commission National Do Not Call Registry
  • States Do Not Call Registries
  • California Legal Remedies Act (CLRA) California Civil Code Sections 1770a 2, 3, 4, 5, 22a; 1750; 3294
  • California Business and Professions Code Sections 17200, 17363.5, and 17500.3a
  • Public Utilities Code Section 2874
  • Company Specific Do Not Call
  • TCPA Company Safe Harbor Do Not Call Policy
  • FTC TSR Abandoned Rules for Predictive Dialers

 

Exceptions to the rule:

 

  • Emergency broadcast
  • Non-profits
  • Surveys
  • Political Messages and fundraisers