TCPA Update: Get consent or use a rotary phone

Ever since the FCC strengthened the requirements to comply with the Telephone Consumer Protection Act (TCPA) in October 2013, marketers have had a number of questions.  One of the biggest questions was around the definition of an autodialer. Last Friday (7/10/2015) the FCC officially answered that question and many others with their release of the Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling.  The Declaratory Ruling took effect immediately.

Unfortunately, marketers aren’t going to like the answers the FCC gave them. On the question of the definition of an autodialer, the answer was the broadest definition possible. The FCC’s new guidance considers any technology with the capacity, present or future, to dial random or sequential numbers an “autodialer.” This is bad news for telemarketers because almost any device, with some modification, can be programmed to record and redial telephone numbers.  In his dissent, Commissioner O’Rielly highlighted this issue, stating that under the new, expansive definition, the FCC had to use a rotary phone as an example of a device that is not an autodialer. In other words, if you are calling a mobile phone without prior express written consent, you better be using a rotary phone like the one at Grandma’s house.

This clarification of the definition of an autodialer is really important because it voids the widely adopted strategy of manually dialing mobile phone numbers. If the phone you are using to manually dial mobile phone numbers is still considered an autodialer under the law, it doesn’t matter if you manually dial or autodial the number. Either way, you need prior express written consent from the consumer. If there is ever a question of whether consent was obtained from the consumer, the law clarifies that the burden of proof is on the marketer that made the call to prove they obtained the necessary prior express written consent. The combination of burden of proof on the marketer, private right of action, and four year statute of limitations make these rules a gold mine for plaintiff’s attorneys.

From my experience, there are a number of marketers that don’t document proof of consent because they haven’t had any TCPA complaints. They feel fears of TCPA litigation were overblown. While it is commendable that a marketer hasn’t had any complaints, the reality is they may have already made outbound calls to enterprising litigators who could demand proof of consent for the call years from now. What constitutes proof of consent?  While this is up to interpretation, it seems prudent to maintain the highest level of proof possible that can be obtained at reasonable cost.

Here are some other important updates:

• A called party may revoke consent at any time and through any reasonable means.
• A calling party may not limit the manner in which revocation may occur.  You cannot put restrictions on how people opt-out.
• Consent must be obtained from the current subscriber to a phone number if the number was reassigned.
• Callers who make calls without knowledge of reassignment and with a reasonable basis to believe they have valid consent to make the call are permitted to initiate one call after reassignment as an opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber.
• Nothing in the Communications Act or the FCC’s rules prohibits carriers from implementing call-blocking technology for unwanted calls.

Here are some recommended best practices for dealing with Internet leads (and yes, our platform can do all of this for you):

• Obtain consent on every form used to collect your Internet leads by including clear and conspicuous TCPA disclosure language opt-in language on every page where you have a form.
• Document & store proof of consent for every Internet lead for five years.  Use TrustedForm with every form, including your third-party lead generation vendors, to have the industry’s highest possible proof of compliance.
• Append information about the phone number.  Utilize a phone enhancement service such as Whitepages or Telesign that can tell you in real-time whether the number is a mobile phone and also give you subscriber information.
• Verify consent prior to calling. Use an automated process to verify that consent was properly obtained for the lead before making the outbound call. TrustedForm has a real-time page scan feature to automatically detect if consent language was present. Mobile numbers without consent should not be called with an autodialer.  Or based on the new ruling, you may not want to call them at all.
• Centralize opt-outs.  Create and maintain a centralized SuppressionList of phone numbers that can be easily and quickly updated when consent is revoked through any of your various marketing and customer communication channels. Any outbound campaigns should check your list prior to making an outbound call or sending a text message.