webinar

CONTACT CENTER CHANGES

ARE COMING: are you ready?

Two important things to note: This webinar is to provide you with information of a general nature about

federal telemarketing rules and requirements. It is not intended to provide you with, and you should not construe it as providing, legal representation or advice. Your specific facts and circumstances may affect the legal outcome, so you should consult with an attorney if you have specific legal questions.

The information contained in this presentation and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is presented to. They are the property of Corvisa Cloud, LLC. Unauthorized review, use, disclosure, dissemination or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful.

Thanks  for  your  Coopera/on!

Disclaimer

Meet the Presenters

   

President, CorvisaCloud

Litigation Partner, Quarles & Brady

Matt Lautz Greg Everts

What are the regulations

What the regulations mean for your business

Precautions

Tips & Tricks  

What you’ll learn

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Overlapping rules & regulators

FEDERAL COMMUNICATION COMMISSION (FCC) General jurisdiction over telecommunications

 

 

 

FEDERAL TRADE COMMISSION (FTC)

Jurisdiction over unfair & deceptive trade

practices in interstate commerce

 

Telemarketing  

FTC Carve-outs

Carve-outs (fact specific)

•  Intrastate telemarketing •  Banks •  Credit unions •  S&Ls •  Common carriers (e.g., airlines, long distance phone

companies) •  Nonprofit organizations

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Companies that contract with an exempt entity to provide telemarketing services may still be subject to FTC jurisdiction.    

NOTE

FCC

Telephone Consumer Protection Act (TCPA)

47 U.S.C. § 227 & 47 CFR § 64.1200

Focus: Regulation of calls using automatic telephone dialing systems (ATDS) and artificial or prerecorded voice messages (robocalls). Additional rules for opt-out, internal do-not-call list, abandoned calls.

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 Same rules apply for text messages!

 

FCC

Telephone Consumer Protection Act (TCPA)

AUTOMATED TELEPHONE DIALING SYSTEM (ATDS): Equipment that 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. 47 U.S.C § 227(a).

   

The FCC and courts have interpreted this to be applicable whether or not this capacity is being utilized.

FTC

Telemarketing Consumer Fraud and Abuse Prevention Act (TCFAPA)

15 U.S.C. § 6101 et seq.; Telemarketing Sales Rule, 16 CFR § 310.

Focus: National Do-Not-Call Registry and telemarketing sales (any “plan, program, or campaign . . . to induce the purchase of goods or services or a charitable contribution” involving more than one interstate telephone call).

Dual purpose calls = telemarketing calls.

 

 

 

Do-Not-Call Implementation Act

What is it? Law requiring the FCC to maximize consistency between FCC rules and the FTC’s Telemarketing Sales Rule

FCC - Notice of Proposed Rulemaking (2010)

•  Harmonize FCC and FTC rules •  More consumer protection (address consumer frustration,

increase in cell phones) •  Avoid over-deterrence  

 

 Final rules announced in 2012, with changes effective October 16, 2013.  

Prior express written consent

Established Business Relationship (EBR)

Opt-out requirements

Abandoned call rules  

What’s New?

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Prior express consent Not defined in TCPA; definition is

developing

Can include oral consent, but not EBR

Does not exist where caller has grabbed the telephone number from

caller ID or another source

Not necessarily transferable--i.e., consent should relate to specific product/service

 

 

Types of consent

Prior express written consent Requires consent in writing

Signed by consumer (in any way permitted by the E-SIGN Act, including email, website form, text message, telephone key press, or voice recording)

Requires “clear and conspicuous” disclosure (consumer was told what he/she was agreeing to)

Unambiguous agreement (consumer unambiguously agreed to receive calls at phone number he/she provided)

Can’t “require[], directly or indirectly, that the agreement be executed as a condition of purchasing any good or

service.”  

Types of consent

Calls to mobile/wireless numbers Previously: Calls using an ATDS or artificial/pre-recorded messages to any telephone number assigned to a cellular telephone service – regardless of purpose – prohibited without prior express consent. NEW: Calls and texts for telemarketing purposes to any mobile/wireless phone now require prior express written consent; other calls still require prior express consent.

     

 

Prior express written consent

Calls to residential lines Previously: ATDS: No per se ban, but sales calls subject to DNC rules; robocalls (artificial/prerecorded voice messages) required prior express consent. NEW: Robocalls now require prior express written consent

LIMITED EXCEPTIONS ● Emergency ● Non-commercial purpose ● Commercial purpose but does not advertise or constitute telemarketing ● On behalf of tax-exempt nonprofit organization ● “Health care” messages by a “covered entity” or its “business associate” [defined in HIPAA Privacy Rule, 45 CFR 160.103].

 

   

 

Prior express written consent (Con’t))

Established business relationship (EBR)

Residential calls using

artificial or prerecorded voice could rely on “established business

relationship” (subject to exceptions).

Essentially, EBR is a proxy for consumer consent.  

PREVIOUSLY  

EBR eliminated; no longer valid.

Unless another exception applies, only prior express written consent will suffice.

NEW  

Old: Telemarketing robocalls must (1) identify the calling entity at the beginning of the call, and (2) provide an opt-out telephone number during the call. Must also maintain internal Do-Not-Call (DNC) list.

•  Interactive opt-out mechanism required within 2 seconds after self-identification

•  Ability to opt-out throughout the call •  If consumer opts out, number must be automatically added to

internal DNC list and call must be disconnected immediately. [in person]

•  Message must include a toll-free number allowing the consumer to call back and connect directly to an auto-dialed opt-out mechanism. [voice mail]

Opt-out requirements

New  

•  Abandoned call = not connected to a live sales rep within 2 seconds of the consumer’s completed greeting

•  “Abandoned” calls prohibited •  Old opt- requirements just discussed

Safe harbor: Can’t abandon more than 3% of calls answered by consumers in any 30-day period.

•  New opt-out requirements just discussed

Abandoned call requirements

current

Safe harbor: Measured for the call campaign or 30 days (shorter duration) •  Call campaign < 30 days - can’t average the abandoned call rate with

other campaigns •  Call campaign > 30 days - average every 30 days  

NEW

Time of day rule (no calls before 8am, after 9pm)

DNC list – requests now honored indefinitely

Internal DNC list required  

Other requirements

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Brief summary

Robocalls: Prior express written consent required for telemarketing robocalls to both wireless telephones and residential numbers. Prior express consent required for non-telemarketing robocalls to wireless numbers. Limited exemptions.

 

 

Tighter opt-out requirements and rules for abandoned calls!  

Auto-dialed calls: Prior express written consent required for auto-dialed telemarketing calls and text messages to wireless telephones. Prior express consent required for all other auto-dialed calls to wireless numbers. Limited exceptions.

Contact center practices that become a “no no”

What’s acceptable

Penalties for non-compliance  

What does this mean to you?

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Unsolicited Robocalling

Voice Broadcast Messages

Automated Dialers

Telemarketing

SMS text messages (unless an emergency)  

   Unsolicited  Sales  or  Marketing  Calls    

Contact center “no no’s”

Same rules apply for businesses now! NOTE

Private Lawsuit Fines Private lawsuits- $500 per call/message violation

Treble damages for “willful and knowing” violation

Injunctive relief Other Types of Fines

$500- $1,500 per violated call/message

Name removal request

Negligence

BEWARE OF THE PENALTIES!

REMEMBER: Consent can always be withdrawn!

 

PENALTY CASE STUDIES

Government enforcement actions

Private lawsuits, including consumer class actions, under TCPA

CASE STUDY: Mortgage Investors Corporation case - $7.5 million civil penalty, June 2013. Allegations: DNC violations, failure to maintain internal DNC list, sales misrepresentations. [To date, FTC has collected $41 million+ in penalties and $33 million in redress for telemarketing violations. See: www.ftc.gov.]  

CASE STUDY: Papa John’s case - $16.5 million settlement, May 2013. Allegation: 500,000 unwanted text messages.  

Critical Items

•  Written policies and procedures •  Employee training •  Documentation of procedures and precautions

à if challenged, you will need to be able to prove compliance

•  Written and recorded procedures and training will defeat a finding of “willful and knowing” violations

 

Stay Free from harm’s way

What’s Acceptable •  E-SIGN Act- digital/electronic signatures •  Full disclosure on file •  Tax-exempt, non-profit organization or

political call to landline

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Precautions Recordings

Dated agreement, clearly printed name

Name, number, business, reason for calling

Purchased leads, lead generating tools- compliant?

Disclosure on website

Compliant scripting

Opt-out

DNC compliance

Don’t forget about it

 

Stay Free from harm’s way

What isn’t acceptable anymore? Simultaneously calling two or more numbers and not having the proper number of agents available to answer the calls if both outbound calls answer.

Abandoning more than 3% of calls

Having a long silent period before it connects to an agent causing the caller to hang up (considered an abandoned call)

Can I still use it? Yes- it’s about how you use it

How you used to use it MAY be illegal- 3% abandonment rate Must have agents available to take all calls that are answered in 2 seconds, unanswered calls cannot be disconnected for 15 seconds or greater.  

 

what about predictive dialers?

Record keeping do’s and don’ts

 

   DO’S

 •  Key-press consent •  Lawful records •  CRM record keeping •  Audits •  Silent listening to your

agents •  Performance

management- compliance

•  Even if you’re compliant and don’t have records you’re still at as much risk as not being compliant

 

 

   DON’TS

 •  Can’t record every

outbound call •  2 party authorization-

must have each agent say “this call will be recorded…”

•  Don’t make assumptions! Just because you don’t share the recording doesn’t mean you are ok.  

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Tricks & Tools •  Lead nurturing with power

dialing •  Skills-based call queues to

route calls •  What do to with purchased

leads •  Valid ways to gain consent

so you can call •  How to train your sales and

service staff to keep you compliant

   

Ways to stay efficient

Thank you! www.corvisacloud.com | info@corvisacloud.com | 877.487.9256