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The Complete Guide to TCPA Compliance

The Complete Guide to TCPA ComplianceThis guide is not a substitute for legal advice. Any questions pertaining to your business should be directed to an attorney

Background

The Telephone Consumer Protection Act (TCPA) has received a lot of buzz in the past year. Prompted by changes to legislation in October 2013 and a surge in TCPA lawsuit cases, any business that dials a consumer telephone number is at risk of violation.

Understanding the new legislation and maintaining strict compliance prac-tices will reduce the chances of your business being the target of a devas-tating lawsuit.

TCPA Regulations

In 1991, the Federal Communications Commission (FCC) adopted the Telephone Consumer Protection Act (TCPA), issuing rules and regulations surrounding telemarketing calls, faxes, pre-recorded messages, and auto-dialed calls

Terms defi ned according to TCPA regulations:

• Telemarketing (Telephone Solicitation): initiation of a telephone call or message (including SMS/text message) for the purpose of encour-aging the purchase or rental of property, goods or services

• Autodialer or ATDS (Automatic Telephone Dialing System): equip-ment which has the capacity to

- Store or produce telephone numbers to be called, using a random or sequential number generator and

- To dial such numbers

• Robocall: a telephone call that utilizes an autodialer to transmit a pre-recorded telemarketing message

• Established Business Relationship (EBR): a relationship between a person or entity and business subscriber

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2

Why have changes to TCPA legislation

recently come to the forefront?

90%

57%

41%

2%

of American adults own cell phones. Of these, 58% are smart phones

of Americans still have landlines. Nearly half are unlisted or unpublished

of American households are wireless-only

have neither a wireless or landline telephone

400

300

200

100

0

1999 2009 2014

100

50

0

January 2010 September 2014

An infl ux of consumer complaints surrounding telemarketing calls, spe-cifi cally to wireless phones, prompted recent changes to TCPA regulations.

34M

203M

Number of Cell Phone Users in the U.S.

Number of U.S. Directory Assistance Landlines

84M

66M

American Wireless and Landline Telephone Statistics

334M

October 2013 Changes to TCPA Legislation

The newest changes to the Federal Communications Commission’s (FCC) Telephone Consumer Protection Act (TCPA) of 1991 were implemented on October 16, 2013. Changes include more defi ned regulations sur-rounding autodialed/robodialed telemarketing calls and pre-recorded messages, specifi c to both landline and wireless telephone lines including:

• Prior express written consent is required for all autodialed or prerecorded telemarketing calls or text messages to wireless numbers and pre-recorded calls made to residential landlines, with the exception of informational calls, such as those from non-profi t organizations, and calls for other noncommercial purposes (informational messages i.e. school closings).

Consent must be unambiguous, with the consumer receiving clear disclosure that they will receive future calls that deliver prerecorded messages by or on behalf of a specifi c seller

• Specifi c requirements enabling consumers to opt-out of future robocalls during a robocall

• Established Business Relationship exemption for pre-recorded telemarketing calls to residential landlines will be elimi-nated, requiring companies to obtain express written consent from their consumers to receive pre-recorded telemarket-

ing messages. EBR still applies to Do-Not-Call regulations

In addition, the FTC established additional regulations regarding calls that distributed messages not contain-ing marketing content:

• “The Commission also exempted from the section 227(b)(1)(B) prohibition on prerecorded voice message calls to resi-dences calls not made for commercial purposes and calls made for commercial purposes that do not contain an un-solicited advertisement. Because the Commission determined that debt collection calls are not telemarketing calls, it concluded that a specifi c exemption for debt collection calls was not warranted”

• “Additionally, we note that many commenters expressed concern about obtaining written consent for certain types of autodialed or prerecorded calls, including debt collection calls, airline notifi cation calls, bank account fraud alerts, school and university notifi cations, research or survey calls, and wireless usage notifi cations.

Again, such calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either written or oral consent if made to wireless consumers and other specifi ed recipients”

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Safe Harbor Period

Due to changes in telephone portability, consumers are able to change their telephone connection from a landline to a wireless phone while keeping the same telephone number.

Ported telephone numbers can be identifi ed as a landline in the morning, and wireless or VoIP line later the same day, making it harder for telemarketers to maintain confi dence in connection type.

Because of this challenge, the FCC has adopted guidelines establishing a “safe harbor” period for ported telephone numbers.

64.1200 Delivery restrictions.

(a) No person or entity may:

(1) Except as provided in paragraph (a)(2) of this section, initiate any tele-phone call (other than a call made for emergency purposes or is made with the prior express consent of the called party) using an automatic telephone dialing system or an artifi cial or prerecorded voice;

(iii) To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier ser-vice, or any service for which the called party is charged for the call.

(iv) A person will not be liable for violating the prohibition in paragraph (a)(1)(iii) of this section when the call is placed to a wireless number that has been ported from wireline service and such call is a voice call; not knowingly made to a wireless number; and made within 15 days of the porting of the number from wireline to wireless service, provided the number is not already on the

national do-not-call registry or caller’s company-specifi c do-not-call list.

While no recent court rulings have specifi cally referenced the 15-day ported line timeframe, it has yet to be determined how the courts might apply this rule during litigation.

Given the severity of the fi nes, all businesses who dial consumer telephone numbers should proceed with caution. Current best practices for companies engaged in telemarketing, text campaigns, and collections include perform-ing daily or per-campaign identifi cation of wireless numbers and current phone owner.

Visit http://www.ecfr.gov/cgi-bin/text-idx?rgn=div6&node=47:3.0.1.1.11.12 for full details

What is Wireless Local Number Portability (LNP)?

Wireless LNP is a wireless consumer’s ability to change service providers within the same local area and still keep the same phone number.

Wireless LNP allows consumers to switch from one wireless carrier to another within the same general metropolitan area. It does not allow consumers to keep the same phone number when moving to a new town or city.

Wireless LNP also allows consumers to move a phone number from a wireline phone to a wireless phone in some cases.

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visit http://www.fcc.gov/encyclopedia/wireless-local-number-portability-wlnp for complete information on telephone portability


Increase in TCPA Lawsuit Filings

As a result of TCPA legislation, there has been a signifi cant increase in TCPA-related lawsuit fi lings.

According to WebRecon, LLC*, from January through September 2014, 1,900 new TCPA lawsuits have been fi led, a 30% increase from 2013. Notable settlements have taken place, with record-breaking, multi-million dollar fi nes.

Fines

Fines for TCPA violation range from $500 - $1,500 per call or text, based on whether the business inadvertently or knowingly violated the regulations.

However, in recent investigations, the FCC has imposed a $16,000 per call/text fi ne in two separate cases to companies who continued to violate both TCPA and FCC rules after an initial citation was imposed. These fi nes were levied directly by the FCC as part of their process to investigate consumer complaints.

Dialing Services: fi ned $3MM for 184 prerecorded messages to wireless numbers, after an initial investigation/citation in 2012

Sprint: fi ned $7.5MM for failing to capture and honor consumers’ do not call and do not text preferences under the TCPA, after an initial investigation in 2009 (leading to the 2011 Consent Decree, requiring Sprint to report to any non-compliance the Bureau for the two years follow-ing the decree)

*Visit: http://dev.webrecon.com/debt-collection-litigation-cfpb-complaint-statistics-august-2014/ for more details on TCPA cases fi led monthly

$ $ $

$ $ $ $ $ $ $ $

5

6

250

200

150

100

50

0Jan Feb Mar Apr May Jun Jul Aug Sept

208222 224 235

216 211197 189 193

163159160141

160

132110

143163

2013/2014 TCPA Lawsuit Filings


Additional Key Rulings

In 2014, several notable cases have been settled for violating the TCPA. These cases alone have resulted in over $200MM dollars in settlement claims:

Capital One (No. 1:12-cv-10064): $75M for autodialing wire-less phones and using prerecorded voice messages without consent

Jiffy Lube (No. 3:11-MD-02261): $47M for unsolicited text messages

Bank of America (No. 11-cv-2390): 6 class-action lawsuits, $32M for autodialing wireless phones and using prerecorded voice messages without consent

Sallie Mae (No. 10-cv-00198): $24.2M for sending unsolicited text messages and autodialing wireless phones

Steve Madden (No. 2:11-cv-05935): $10M for sending unsolic-ited text messages

Domino’s (No. 10-cv-349): $10M for sending unsolicited text messages; autodialing wireless phones and using prerecord-ed voice messages without consent

Discover Financial Services (No. 3:12-cv-1118): $8.7M for au-todialing and using prerecorded voice messages without con-sent

Vivint Home Security (No. 12-cv-61826): $6M for autodialing wireless and DNC phones without consent

Fifth Third Bank (No. 1:12-cv-1612): $4.5M for autodialing wireless phones and using prerecorded voice messages with-out consent

$75M

$47M

$32M

$24.2M

$10M

$10M

$8.7M

$6M

$4.5M

These cases [alone] have resulted in over $200 million dollars in settlement claims.“

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How Businesses can Mitigate Risk 8Manually dial telephone numbers

While this is not the most cost-effective or effi cient option, manually dialing tele-phones with a live operator greatly diminishes the likelihood of TCPA violation.

Obtain consent to send autodialed, pre-recorded messages

Establish a process to obtain and document express consent for consumers to opt-in to autodialed and pre-recorded messages, both electronically for online applications and numerically for phone-initiated consent. Capture complete supporting documentation including screenshots, IP address, date, and time for all express consent documentation.

Provide consumers with a clear and conspicuous opt-out option

Make certain to provide consumers with a clear way to opt-out of future com-munication. This includes providing opt-out information for consumers who pre-viously opted-in to autodialed and/or pre-recorded messages. Maintain docu-mented consent and opt-out information for a minimum of 4 years, which is the federal statute of limitation for TCPA lawsuits (28 U.S.C. § 1658[a]).

Identify phone type (landline vs. wireless)

Scrub consumer phone numbers daily or prior to each calling campaign to en-sure you have accurately identifi ed landline and wireless phone numbers in your database. Send your fi le of phone numbers to a provider with access to the live telephone company databases, who can append up-to-the-minute phone type.

Identify ported telephone numbers

Have your provider process current telephone numbers to identify phones that have recently been ported from landline to wireless numbers. Remove all num-bers that have been ported from landline to wireless from your ATDS.

Confi rm phone owner

Verify the phone owner name is the same as the person who provided consent to call and/or leave pre-recorded voice messages. Have your data provider vali-date current phone ownership information or append new phone owner name (if information has changed) to ensure compliance.

MANUALLY DIAL

OBTAIN CONSENT

PROVIDE OPT-OUT

IDENTIFY PHONE

TYPE

VALIDATE PORTED PHONES

CONFIRM PHONE OWNER


For purposes of TCPA compliance, your provider’s database should be updated, at a minimum, daily. Some providers are able to update as frequently as the live, telco databases update their information which can be several times throughout the day.

Key industry providers are able to access data from the live, telephone company databases. This information is updated several times throughout the day and is the most updated information available to telemarketers.

Some TCPA compliance services offer a quick fl agging of phone type. They will indicate landline or wireless, but not provide further information on the owner of the telephone number.

Frequently, phone numbers are reassigned from one owner to another, with a short window of non-connectivity. To ensure compliance with the TCPA, full own-ership information should also be validated, verifying that the person who pro-vided you with express consent is still the same owner of the phone number.

Several key best practices include:

1. Validate that the owner of the phone number who provided consent is still the same phone owner. If the owners’ names are different, remove the num-ber from your ATDS

2. Verify the phone type to remove wireless numbers from the ATDS. Keep only wireless numbers in the ATDS where consent has been documented

3. Remove disconnected phone numbers from your system to improve call pro-ductivity

4. Update all records in your database with current phone owner information for improved consumer identifi cation

9 Choosing a Provider for Telephone Processing

How often is your telephone

database updated?

Do you have access to the

live, telco databases?

Do you have the associated

name and address information

for the owner of the telephone

number?

A key component in maintaining compliance with the TCPA is the ability to identify phone type and owner of the telephone number. Key questions to ask your provider include:

What are the best practices for

data scrubbing among other

companies looking to maintain

TCPA compliance?


An average of 50-60,000 phone numbers are ported from landline to wireless and VoiP each week. As part of the scrubbing process, your provider should be able to identify and fl ag numbers that used to be landline and have recently been ported to a wireless or VoIP number.

To maintain compliance with the “safe harbor” period, you want to be certain you are identifying these ported numbers within a 15-day window of line change.

In TCPA, as well as other data services, providers are often able to assign a con-fi dence score, indicating their level of confi dence in the returned data. This pro-vides fl exibility for telemarketers in determining which numbers to call and which they should steer away from to ensure compliance.

Depending on the frequency and timing of your campaigns, you will want to understand if there is an option to implement a real-time data feed, or process batches of data through an append and validation tool.

Typically, real-time data has a higher cost than a batch processing tool; however, it is the fastest way to validate data. If you choose to utilize a batch process, ensure turnaround times will meet your campaign expectations for data delivery.

Some providers have automated platforms that process data 24 hours a day while others may rely on manual processing, thus increasing turnaround time for receiv-ing data.

Some companies institute moderate to heavy development charges to imple-ment a new batch or real-time data program. Other providers will work with clients to customize both common and specialized data searches that help accomplish specifi c objectives, at no or minimal cost.

It is important to understand all associated costs with implementation of a new data service or program.

What is your level of

confi dence in the accuracy of

the provided information?

Is your information available

in real-time or through a

batch processing application?

9 Choosing a Provider for Telephone Processing(continued)

Is there a development cost

to set up your batch or real-

time data service?

Are you able to identify

telephone numbers that have

been ported from landline to

wireless?


About Infutor Data Solutions

Infutor Data Solutions, Inc. is a privately-held corporation whose primary focus is creating and maintaining the most accurate and complete data assets available. Compiled from public and proprietary information, these data assets are highly regarded in the information industry and are used by many of the industry’s largest information resellers, fraud and analytics fi rms, collection specialists, and skip tracing agencies.

Our clients include 3 of the 5 largest marketing service providers/agencies in the United States, 2 of the 3 major credit bureaus, one of country’s largest non-profi t organizations, and Fortune 1000 skip tracing, fraud and analytics providers.

Infutor is a key TCPA compliance partner, compiling over 500MM telephone records, including direct con-nection to the live telco databases. Combined with our massive Consumer Referential Database (CRD) of 535MM consumers and 1.4B current and historical address records, Infutor’s solutions are also used as a foundation for applications in:

• Identity validation and verifi cation• Fraud detection and management• Skip tracing• Direct marketing• Retail consumer acquisition/retention• Database management

Data is accessible through on-site licensing, automated batch processing, real-time XML data transactions, and online query and order systems, all of which have been developed and maintained by Infutor.

• Inbound call center identifi cation and call routing

• Enhanced/proprietary change of address processing (PCOA)

• Corporate data integration (CDI)• Law enforcement searches

More Information

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i2017 South Route 59Plainfi eld, IL 60586

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[email protected]

(312) 348-7900

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