SECURITY NATION

SEPT/ OCT2016

40

GOVERNMENTRELATIONS

1991 LEGISLATION MAKES A COMEBACK TO PROTECT CONSUMERS

The 90’s were, like, totally the best decade ever (said dripping with valley-girl dialect).There was Wayne Gretsky dominating the ice, teal and fuchsia windbreakers you could hear coming from a mile away, and who could forget dancing to “Macarena” on your Walkman? But amidst the prosperous economy (4 percent growth per year from 92-99) and adding caller ID to your landline, a single piece of 90’s legislation stands out as easing the frustration of, arguably, every single American citizen. In 1991, the Telephone Consumer Protection ACT (TCPA) was passed; a collective sigh could be heard at dinner tables across the nation that night. The TCPA received another much-needed update in the summer of 2015 which continues the effort to protect consumers from unwanted robocalls as technology changes and advances. Security Nation interviewed the Federal Communication Commission (FCC) Chief of Consumer and Governmental Affairs Bureau Alison Kutler for her expertise on what the TCPA means for the electronic security industry.

What should security industry business owners and executive leadership know about TCPA and the FCC?

The FCC is responsible for creating rules to implement the TCPA, interpreting the law, and taking enforcement action against unlawful robocallers whenever necessary. Within the FCC, the Consumer and Governmental Affairs Bureau (CGB) is tasked with interpreting the statute and creating rules for Commission consideration. CGB also receives all of the consumer complaints that come to the Commission, which we monitor to identify trends that affect consumers. Unwanted calls, including telemarketing and robocalls, account for the highest number of complaints we receive. In the past year and a half, we have received nearly 270,000 complaints about unwanted calls, including robocalls and telemarking calls. To be clear, not all robocalls are illegal or unwanted. Prior consumer consent is always a good idea before making these calls, and is generally required for such things as robocalls to cell phones. We strongly advise companies to review the rules as they pertain to robocalls. Visit www.fcc.gov/robocalls for a simple guide.

What is the biggest misconception about robocalling and spoofing?

One big misconception about robocalling concerns how the Commission’s rules handle the use of autodialers. Under the law and Commission’s rules, the touchstone issue is whether the equipment has the “capacity” to robocall and not whether a business is using it to robocall. As a result, oftentimes, businesses may not believe they are using autodialers when in fact they are. If you have questions about whether your equipment is considered an autodialer under the Commission’s rules, you should contact the FCC for guidance. We’re here to help. Another robocalling misconception is that obtaining consent is difficult. Actually, obtaining consent is made easier once you identify the types of robocalls you want to make. For example, if a business is seeking to make a marketing call to a consumer, it needs to have the consumer’s consent in writing. In a nutshell, a business owner should make sure consumers know of its desire to contact them through robocalls and confirm that the consumers are okay with it by getting their consent. It may also be worth noting that consent cannot be a condition of a sale, or assumed based on an existing business relationship.

Samantha ParkMarketing Communications

SpecialistSamantha.Park@ESAweb.org

972.807.6811

As for spoofing, one misconception is that all spoofing is illegal. “Spoofing” occurs when a caller deliberately falsifies the information that is transmitted to your Caller ID in order to mask their identity. It is often used to trick consumers into handing over their personal information so it can be used for an illegal activity. There are certainly legitimate and useful reasons for companies to utilize spoofing. For example, if a third party is calling a consumer on behalf of another entity, it is reasonable for the call to be reflected as coming from the sponsoring entity. Generally, spoofing is a problem when it is being done for financial gain or to harass someone.

What, if any, are best practices for businesses that use telemarketing as a method for lead generation? I cannot overemphasize the importance of consumer consent. Get consent when required and if you are in doubt about whether consent is required, still get consent. If you are making a telemarketing call to a consumer whose number is not on the Do-Not-Call list, make sure you still get the consumer’s consent in writing. Also, be careful not to solicit consent via a robocall or robotext. Email, online forms, in-person exchanges, print advertisements, and phone exchanges are ways business owners can request consent. A few examples of best practices are:

1. Get consent in writing when required. 2. Keep good records about consumer consent. Such records would

be helpful in responding to allegations of TCPA violations. 3. Make sure that you honor consumers’ requests to revoke consent in

any reasonable way. 4. Keep an eye on the Commission’s rules and those of the Federal

Trade Commission (FTC). Congress may instruct us to refine or amend our rules at any time.

What should a business do if they are being impersonated by another company who is conducting illegal robocalling? Spoofing is one form of impersonation. If that’s what is happening, a business may want to contact its telephone service provider for assistance in stopping it. A business can also file a complaint with the FCC and we will look into the issue. And, of course, if a business suspects that another company is simultaneously using robocalling while impersonating them, the FCC can address that through a complaint as well.

How do text messages fit into the TCPA rules? The same rules apply for text messages as those that apply to calls to mobile phones. Consumers tell us that unwanted text messages can be as annoying as unwanted calls. Therefore, businesses must get consent to robotext consumers and they should keep in mind that consumers can revoke consent at any time.

If a consumer requests to be taken off of any call or distribution list a company has, how long does the company have to comply?

Thirty days. In addition, if a phone number has been reassigned so that the intended recipient who had given consent is no longer available at that number, companies should immediately refrain from calling that number again.

What are the different forms of consent for telemarketing?

For telemarketing calls, businesses must obtain written consent. If a business is just relaying information and not trying to sell the consumer something in the call or text, consent may be given orally. It’s important to note that if a call includes telemarketing, even if it was initiated for some other purpose, our rules still require prior written consent.

The new rules for the amended TCPA hit home for the electronic security industry as it is common for spoofers and predatory scammers to disguise themselves as a home security business to gain usable data. With that we must combat this crime by implementing these best practices into our organizations and doing our part to eliminate the threat. If you ever find yourself on the other end of a robocall, don’t engage; just hang up, and then day dream about the 90’s and that rad hair-do you used to have. You totally pulled it off.

Alison Kutler serves as the Chief of the Consumer and Governmental Affairs Bureau and Special Advisor to the Chairman for Digital Opportunity at the Federal Communications Commission. Alison has more than 20 years’ experience in government and the private sector developing and leading public policy strategies at the U.S. and global level.

I CANNOT OVEREMPHASIZE THE IMPORTANCE OF CONSUMER CONSENT.