Upload
others
View
1
Download
0
Embed Size (px)
Citation preview
New Telemarketing Rules and Lead GenerationWritten Consent Requirements Require Better Records for Many Telemarketing CallBy Jonathan L. Pompan and Maura A. Marcheski Venable LLP Washington, DC
a publication from
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
When the new TCPA regulations came into place October 16, 2013,
Jornaya commissioned Venable LLC to write this paper in order
to help the industry sort through these regulations and identify
the areas that are most likely to create risk for parties who call
consumers.
Jornaya found there are several critical items a party should be
educated about before making calls to consumers, which Venable
has covered herein.
The key areas that need to be addressed to ensure TCPA
compliance include:
• Each lead event must have definitive disclosure and
consent information about that particular event - not
just general information about the website itself. This is
important because websites can provide different content
at different times based on the time of day, geography,
whether or not it’s a real consumer vs. crawler, and
multiple other reasons.
It is critically important that the calling party knows if this
particular lead event had the proper disclosures and
consent before dialing.
• The caller must know definitively what content was
displayed to the consumer from each particular lead
event, and how conspicuously it was displayed.
• The caller must know definitively whether or not what
was displayed is considered compliant or not based on
the rules set by the lead buyer, or calling party.
• Callers need the ability to take action in real-time
with all of the above definitive information. If you learn
after making the wrong call that you have committed
a violation, that does not really help you - you need to
know before you dial – without sacrificing speed-to-lead
operational efficiency.
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
Introduction
In October of 2013, significant changes to the
Federal Communications Commission’s (“FCC”)
rule implementing the Telephone Consumer
Protection Act (“TCPA”) went into effect,
bringing the issue of valid consumer consent
to the forefront of the minds of regulators and
class action attorneys alike. 1The changes
require prior express written consent for all
auto-dialed and prerecorded telemarketing
calls, as well as for text messages sent to
cell phones. The FCC’s rule requires prior
express written consent for all prerecorded
telemarketing calls placed to landlines. The
FCC has made it clear that the caller bears the
burden of proving consent.
In practice, these changes mean that now
more than ever, a telemarketer’s (i.e., online
lead buyers and some lead sellers) access to
authoritative consent records are essential for
legal compliance. It is equally important for
lead buyers to know that certain consumer
disclosures were present and that a consumer
provided his or her valid consent in real-time
before that lead is dialed.
For each non-compliant lead that is contacted,
the penalties the lead buyer could face
are significant. The TCPA may be enforced
by the FCC, state Attorneys General, and
private plaintiffs. Recent class actions alleging
violations of the TCPA have settled for tens
of millions of dollars. The TCPA provides
for between $500 and $1,500 in statutory
damages for each violation. TCPA cases have
generally been on the rise and filings have
continued to climb since new rule took effect
(suits increased 45% between 2014 and 2015).
If, for example, 10,000 leads are called through
an auto-dialer that are later found to be non-
compliant and the violation was willful, a class
action suit could cost the lead buyer upwards
of $15 million in statutory penalties alone. This
cost is separate and apart from any legal fees
the lead buyer would incur in the defense.
As a result, in order to confidently navigate
TCPA auto-dialing restrictions, marketers and
lead generators must be familiar with the rules
and understand the importance of obtaining a
consumer’s prior express written consent when
calling leads.
1The FCC regulations (47 C.F.R. § 64.1200) were
issued pursuant to the Telephone Consumer
Protection Act of 1991 (“TCPA,” 47 U.S.C. § 227),
available at http://hraunfoss.fcc.gov/edocs_
public/attachmatch/FCC-12-21A1.pdf.
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
New Telemarketing Rules
Outbound telemarketing calls to third-party generated leads are
subject to the TCPA. The TCPA currently prohibits using an auto-dialer
or artificial or prerecorded voice to place calls to a cell phone unless
the caller has obtained the prior express consent of the called party.
Telemarketers are required to have prior express written consent to
do the same thing. Telemarketers will also need this form of written
consent for all prerecorded telemarketing calls placed to landlines.
As a practical matter, this means that a purchaser of leads will face a
higher standard to prove that the consumer did, in fact, consent to be
called.
The FCC defines “prior express written consent” as:
[A]n agreement, in writing, bearing the signature of the
person called that clearly authorizes the seller to deliver
advertisements or telemarketing messages using an
auto-dialer, and the telephone number to which such
advertisements or telemarketing messages may be delivered.
(i) The written agreement shall include a clear and
conspicuous disclosure informing the person signing that:
(A) By executing the agreement, such person authorizes the
seller to deliver or cause to be delivered to the signatory
telemarketing calls using an automatic telephone dialing
system or an artificial or prerecorded voice; and
(B) The person is not required to sign the agreement (directly
or indirectly), or agree to enter into such an agreement as a
condition of purchasing any property, goods, or services.
The FCC defines “clear and conspicuous” as follows: “[A]
notice that would be apparent to the reasonable consumer,
separate and distinguishable from the advertising copy or
other disclosures.”2
Note that the “signature” requirement can be met by getting the
consumer’s signature in electronic or digital form, including on a
website. Also, note that the restriction applies to any system capable
of operating as an automated telephone dialing system, including
predicative and progressive dialers.
There are likely many different ways to comply with the 2013 rule, but
each variation will require some explicit language placed where it will
be readily apparent to the consumer (i.e., directly on a registration or
sign-up page), and is not buried among other disclosures or difficult to
identify among the rest of the copy on the screen.
2The “clear and conspicuous” disclosure requirement dovetails with the Federal Trade Commission’s (“FTC”) new guidance document for digital advertisers and marketers, called the “.com Disclosures: How to Make Effective Disclosures in Digital Advertising” (the “Disclosure Guide”). The Disclosure Guide can help lead generators make consent disclosures clear and conspicuous in order to avoid claims of false and deceptive marketing practices.
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
Background
Separate and exclusive from the 2013 change to the
FCC rule, the TCPA and Federal Trade Commission’s
(“FTC”) Telemarketing Sales Rule3 (“TSR”), also
prohibits (among many other things) placing a
telemarketing call to any residential or cell phone
number listed on the National Do Not Call (“DNC”)
list (available at https://telemarketing.donotcall.gov/)
unless the company has obtained the prior express
written consent of the person called or the marketer
has an established business relationship (“EBR”)
with the person called. Federal DNC rules require
marketers to check the national DNC list for updates
once every 30 days and to scrub their lists against
the national DNC list within 31 days of making any
telemarketing call if they don’t have an EBR with the
called party.
An EBR is formed by a voluntary two-way
communication between a company and a customer
that’s either based on the customer’s purchase of the
company’s product within the past 18 months (before
the telemarketing call), or based on the customer’s
inquiry about the company’s products within the past
three months (before the telemarketing call).
Also, an FTC staff advisory opinion letter stated
that with respect to internet lead generators, staff
would not recommend a DNC enforcement action
against a telemarketer that calls consumers who
had responded to a lead generator’s solicitation, if
the lead generator, among many things, made full
and adequate disclosure of certain material facts
about the consequences of responding to such
solicitations.
While many states have adopted the federal EBR
standard, some states have more restrictive EBR
standards or do not recognize the EBR exception at
all. Also note that an EBR will only help marketers
with the federal DNC requirements; an EBR cannot
cure the absence of prior, express written consent to
receive the call in the first place.
3 The FTC’s TSR (16 C.F.R. § 310) was issued pursuant to the Telemarketing and Consumer
Fraud and Abuse Prevention Act (15 U.S.C. § 6101 et seq.).
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
Don’t Forget about Do-Not-Call Rules
To prevent TCPA and TSR violations, marketers could manually dial calls
to wireless phone numbers (to those not listed on DNC), but that would
decrease operational efficiency and considerably increase costs. The
prevalence of wireless phones and the expense of manual dialing would
detract significantly from a marketer’s objectives.
On top of this, the FCC rule still applies to calls dialed from a disabled
automated dialer. On the other hand, lead generators that collect proof
of express written consent, can deliver powerful insights and encourage
compliance with the auto-dialing restrictions without compromising lead
certainty and productivity.
Therefore, access to authoritative prior express written consent records
before the lead is dialed, is essential to help mitigate a telemarketer’s
TCPA and TSR compliance risk and not sacrifice its bottom-line
objectives. But, due to the constantly changing and hard-to-verify nature
of consent data, marketers need a way to verify that the consent a
consumer provided at the time of the inquiry is still available if they make
calls using auto-dialers or prerecorded messages. While no specific
language or method of disclosure under the FCC rule has been tested or
confirmed as adequate, marketers need to consider several key factors
when evaluating records of prior express written consent, such as:
• The lead generator must obtain a clear and conspicuous agreement
that accurately reflects that the consumer will receive a telemarketing
phone call.
• The agreement must state the identities of the telemarketers;
that the telemarketing call may be by automatic telephone
dialing system; that the telemarketing call may be by an artificial
or prerecorded voice; and that the person is not required to sign
the agreement (directly or indirectly), or agree to enter into such
an agreement as a condition of purchasing any property, goods,
or services.
• The lead generator must obtain authorization with one of the
following: a signed paper agreement; an electronic means to
provide a signature in compliance with the E-SIGN Act, such
as a form that can be sent via electronic mail, a process on the
website, or non-prepopulated check box; or with another means.
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
What Does This Mean?
For more information on the key factors for
marketers to consider for evaluating records of
prior written consent, contact Jornaya to request
the Jornaya & Venable TCPA Worksheet.
A wide variety of federal and state laws regulate advertising and marketing practices. Certain laws
cast a wide net by broadly prohibiting unfair, deceptive, or abusive acts or practices. This article does
not provide guidance on how to evaluate whether a particular advertisement or marketing piece is
deceptive, unfair, abusive or otherwise violative of a law or rule, which will depend upon the specific
facts at hand.
Advertising and marketing is generally regulated pursuant to laws that are enforced by the FTC,
Consumer Financial Protection Bureau, other local, state (e.g., sweepstakes requirements), or other
federal laws and regulations (e.g., regulations issued by the Food and Drug Administration), and will
vary depending upon the nature of the advertising and marketing, including potentially the medium.
Given the quickly changing and high risk landscape of telemarketing, marketers should examine
their calling and text messaging practices and determine whether any changes will be required
to how consumer consent is presented and obtained. In addition, lead buyers and sellers should
carefully consider how prior express written consent is documented and retained before calling each
lead. With a rise of consumer consent-based enforcement and class actions on the horizon, more
companies will be required to “prove it” under the rule.
This material is for education purposes only. This article is not intended to provide legal advice or opinion and should not be relied on as such. Legal advice can only be provided
in response to a specific fact situation.
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.
Closing Note on the Ever-Changing Advertising Landscape
leadid.com
About Jornaya
Jornaya is the consumer journey insight platform that provides marketers, data analysts, and com-pliance professionals with the highest-resolution view of the consumer buying journey. It is the only technology platform that witnesses both first- and third-party consumer interactions in real time and across devices. Meeting consumers at these moments of intent enables businesses to shorten the distance between data, decision, and action. Jornaya seamlessly integrates with any buyer journey
decisioning process or toolkit.
Get started at jornaya.com
267.460.7287
facebook.com/Jornaya
twitter.com/jornaya
linkedin.com/company/jornaya
Confidential and Proprietary. For information purposes only. Please do not copy or distribute further without prior express written permission from Jornaya™.©2016 Jornaya™, Jornaya.com & Jornaya™, Inc. All rights reserved.