Implementing the Amendments to the TCPA

Background and Changes to Amendments

On January 22, 2010, the Federal Communications Commission (FCC) issued a Notice of Proposed Rule Making (NPRM) to address the harmonization of certain provisions in its Telephone Consumer Protection Act (TCPA) with the Federal Trade Commission’s (FTC’s) Telemarketing Sales Rule (TSR). The TSR and the TCPA had fairly significant differences relating to the delivery of a solicitation prerecorded message and the calculation of call abandonment rates. Due to these variations, the Do Not Call Improvement Act (DNCIA) and industry advocates have encouraged the FTC and FCC to work together to provide consistent regulatory frameworks.

On February 15, 2012, the FCC issued the final rule that adopted the significant amendments to the TCPA in an attempt to, among other things; maximize consistency between these analogous Do Not Call (DNC) regulations. All previous exemptions to the TCPA’s regulations, provided by the FCC, will remain applicable.

On October 16, 2012, the Office of Management and Budget’s final approval of the FCC’s amended TCPA regulations was published in the Federal Register. The notice listed implementation dates for each requirement.

This document outlines the FCC’s changes to the TCPA involving autodialed calls to wireless numbers, prerecorded messages to wireless numbers, prerecorded messages to residential numbers, call abandonment rate, and the call abandonment message. Each section is broken down into four subsections:

• What is the new rule?
• What is the difference?
• What is the timeframe?
• What is the next step?

At the end of this update you will find a checklist, as well as a document outlining the application of the new written consent requirements, that will aid you in your efforts to reach compliance with these new regulations. For additional questions on the issue, please feel free to contact a CompliancePoint consultant.

Autodialed Calls to Wireless Numbers

What is the new rule?

No telemarketing call may be made to a consumer’s cell phone using an automatic telephone dialing system unless the consumer has provided prior written express consent.

Note: An ATDS is technology that has the “capacity” to store and randomly or sequentially dial telephone numbers. Courts have liberally applied this definition citing that the “capacity” defines the ATDS whether or not it is used.

If dialing wireless numbers utilizing a manual dialer, you are not subject to this new requirement.

What is the difference?

Previously, only prior express consent (not prior express written consent) was required to call cell phones utilizing an autodialer. This level of consent to call/text any mobile device using an ATDS for ANY purpose is currently defined as “Prior Express Consent”. The FCC has commented on its standard for prior express consent, stating that persons, who knowingly release their telephone numbers, have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.

Prior express consent is still required for non-solicitation calls to mobile devices using an ATDS

What is the timeframe?

The prior express written consent requirement is effective October 16, 2013 (12 months after approval of the FCC order).

What is the next step?

Companies should begin gaining prior express written consent through the appropriate language and record keeping. This consent may be obtained via the appropriate scripting during inbound and/or outbound telephone calls, Web-based lead forms, return e-mails, preference centers, and additional lead generation sources. Records of this express written consent should be maintained for 5 years from the last date the consent is relied upon to make a call.

Suggested language and mandatory disclosures to obtain consent to call wireless numbers, utilizing an ATDS, can be found in the documents that follow this update.

The seller has the burden of proof to show the consumer provided written consent to be called. We recommend all records be kept for at least 5 years from the last date the consent is relied upon to make a call, based on the FTC statute of limitations for enforcement actions.

Prerecorded Messages to Wireless and Residential Numbers

What is the new rule?

The TCPA requires:

• Prerecorded telemarketing messages may no longer be sent to wireless numbers or residential numbers without the called party’s prior written express consent.
• All prerecorded telemarketing messages must include a DNC automated, interactive voice and/or key-press-activated opt-out mechanism and immediately terminate the call. Opt-out ability must be available even when the call reaches an answering machine.

What is the difference?

This eliminates the FCC’s previous exemption which allowed prerecorded messages to be sent to a consumer’s residential number if the caller had an established business relationship (EBR) with the consumer. For companies previously only under the FTC’s jurisdiction, there is no change since the EBR exemption only applied to entities not subject to the jurisdiction of the FTC.

This new rule also requires an automated opt-out mechanism in prerecorded messages that was not previously required.

The FCC’s rules for informational calls and other non-sales calls remain the same:

• Informational and non-sales calls made to wireless numbers are allowed as long as the consumer has provided “prior express consent”.
• Informational calls and other non-sales calls to residential numbers are allowed and do not require consent.

What is the timeframe?

The prior express written consent requirement is effective October 16, 2013 (12 months after approval of the FCC order).

The Automated opt-out requirement is effective January 14, 2013 (90 days after approval of the FCC order).

What is the next step?

Companies, that desire to send solicitous prerecorded messages to consumers, must implement procedures to collect the consumer’s express written consent.

This consent may be obtained via the appropriate scripting during inbound and/or outbound telephone calls. Web-based lead forms, return e-mails, preference centers and additional lead generation sources.

Suggested language and mandatory disclosures to obtain consent to send solicitous prerecorded messages to a consumer can be found in the documents that follow this update.

The seller has the burden of proof to show that consumers provided written consent to be called. We recommend all records be kept for at least 5 years from the last date the consent is relied upon to make a call, based on the FTC statute of limitations for enforcement actions.

Furthermore, all prerecorded telemarketing messages must include the DNC automated opt-out mechanism. When the consumer does opt-out of the prerecorded message, the dialer system must be able to immediately honor that DNC request and immediately terminate the call. If a pre-recorded message is left on an answering machine or voicemail box, the message must provide a toll-free number that enables the consumer to connect to an automated opt-out mechanism.

Call Abandonment Message

What is the new rule?

All call abandonment messages must now include a DNC automated, interactive voice and/or key-press-activated opt-out mechanism prior to terminating the call.

What is the difference?

Both the FTC and FCC require a call abandonment message; however, they did not previously require that an automated opt-out mechanism be included in the call abandonment message.

What is the time frame?

The call abandonment message requirement is effective January 14, 2013 (90 days after the final approval of the FCC order).

What is the next step?

In the event a sales representative is not available to speak within 2 seconds of the called person’s completed greeting, a pre-recorded identification message must be deployed. This message must state the name and telephone number of the business, entity, or individual on whose behalf the call was placed, and that the call was for telemarketing purposes. No solicitation is allowed in this required message and instructions must be clear on operating the opt-out mechanism.

All call abandonment messages must include a DNC automated, interactive voice and/or key-press-activated opt-out mechanism and immediately terminate the call. Companies must ensure that when the consumer does opt-out through a call abandonment message, the dialer system is able to immediately honor that DNC request.

We recommend the following language:

“This was a call from [Company Name] for telemarketing purposes*. Our phone number is ###-###-####. To be added to our internal DNC list, please press one now. Thanks and have a great day.”

Call Abandonment Rate

What is the new rule?

The TCPA’s new call abandonment rules harmonize with the FTC’s TSR standards to require a call abandonment rate be calculated for a single campaign over a 30 day period. A campaign is defined as: “the offer of the same good or service for the same seller”.

What is the difference?

The FCC previously required that the call abandonment rate be a measured across all campaigns over a 30 day period.

What is the time frame?

The call abandonment rate calculation requirement went into effect November 15, 2012 (30 days after approval of the FCC order).

What is the next step?

The new call abandonment rate rules have no effect for entities previously only covered by the FTC. However, for those under the FCC’s jurisdiction, changes must be made in methods of abandonment calculation.

A call abandonment rate is measured over the “duration of a single calling campaign”. Each separate campaign is subject to a maximum abandonment rate of 3% percent measured over the duration of a single calling campaign, if less than 30 days, or separately over each successive 30-day period or portion thereof that the campaign continues.

The formula for calculating the call abandonment rate is as follows:

Total number of calls abandoned divided by the total number of calls answered by a live person plus total number of abandoned calls (expressed as a percentage). For example, 30 abandoned calls divide by 120 calls answered by a live person plus 30 abandoned calls multiplied by 100 equals a 20% abandonment rate. That is 30 / (120+30) x 100 = 20%.

Application of Written Consent Requirements in Specific Contexts

General Written Consent Requirements

Companies that wish to obtain prior express written consent from consumers, for the purposes of placing calls to the consumer’s wireless number via an ATDS or for delivering solicitous prerecorded messages, must ensure their lead sources meet the following requirements to obtain consent.

Any type of written consent, or agreement, should be clear and conspicuous and meet the following requirements:

• Written Agreement – Consent must be obtained in a written agreement, which includes the signature of the person providing consent. An electronic signature is sufficient to effectuate a written agreement in accordance with the E-SIGN Act.
• Identity of the Seller – the agreement must specifically indicate the seller(s) to whom consent is being provided.
• Telephone Number – the agreement must include the cellular number at which the person consents to receive calls. If the written agreement includes more than one number, it must be clear which number(s) the person is consenting to receive calls at.
• Affirmative Action – the consumer should take some affirmative action to indicate his/her assent.
• Mandatory Disclosures – the agreement must clearly and conspicuously disclose:
  • The person authorizes the seller to make telemarketing calls;
  • The calls will be made using an ATDS (or prerecorded message, if applicable); and
  • The person is not required to provide consent as a condition of purchasing any good/services.

Consent Requirements for Paper Forms

• Signature. Consumers must provide their actual signatures (see below regarding how to get consent in the context of larger documents). Additionally, we recommend having the consumer’s name typed or printed on the form to help personnel correctly identify and record who has provided consent (e.g. in the case of an illegible signature).
• Customer Agreements / Order Forms / Other Agreements. Obtaining consent in the context of a larger agreement raises concerns regarding the conspicuousness of the disclosure and whether consent is required as a condition of making a purchase (i.e. the validity of the consent). Sellers can overcome these issues by including a separate consent provision within the document and having the customer specifically consent to this provision by signing/initialing the provision or checking an “I agree” box.
• Record Retention. Copies of all written agreements should be retained at least 5 years from the last date the consent is relied upon to make a call(storing in electronic format is sufficient). To help prove when consent was obtained, the agreement should include the date.

Consent Requirements for Online Forms

• Customer Agreements / Order Forms / Other Agreements. Same considerations as outlined for Paper Consent Forms.
• Affirmative Action and Signature. Electronic signatures can be obtained online by requiring the consumer to take some affirmative action to indicate his/her assent to the agreement. The use of a “Submit” button and appropriate disclosure language (e.g. “By pressing the ‘Submit’ button, I agree to receive…”) is likely sufficient if the form is used exclusively for obtaining written consent to call the consumer. If the form serves a broader purpose (e.g. a registration page, a profile page, order form, etc.), an additional step should be required for consumers to provide consent (e.g. checking a consent box).
• Clear and Conspicuous Disclosures. All required disclosures should be made in immediate proximity to the button that consumers will use to provide their electronic signature and assent to the agreement (e.g. “Submit” button or “I Agree” button, etc.).
• Recordkeeping. Sellers should collect and retain the following information for each person that provides consent: (i) name; (ii) telephone number; (iii) time/date of consent; (iv) consumer’s IP address; and (v) URL where the consumer provided consent. Additionally, sellers should be able to produce and substantiate the exact language used on the webpage at the time consent was obtained. All changes to the online request form should, therefore, be documented.

If companies wish to reduce the burden of obtaining prior express written consent, companies may utilize one of the following options to minimize the impact to lead flow when generating leads through an online form:

• Companies may utilize phone number research software, to determine if a number provided is a wireless number. This would prompt a separate disclosure notice for affirmative action for wireless numbers. Numbers provided that are not wireless would not be subject to the lengthier disclosure.
• Companies could identify all wireless numbers provided by consumers and place calls to these numbers manually to avoid having to obtain prior express written consent. Companies that utilize this option should ensure that they have the processes in place to maintain the necessary dial records.

Consent Requirements for E-mail Forms

• In General. These considerations and/or rules apply to situations where sellers use consumers’ e-mail responses to get written consent to call cell phones. If a seller uses e-mail campaigns with links to a website (where consumers actually provide the consent), the considerations outlined for Online Consent Forms apply instead.
• Clear and Conspicuous Disclosures. All required disclosures must be clearly and conspicuously made in the body of the e-mail sent by the seller to request written consent from the consumer.
• Telephone Number. The consumer’s cell phone number must be included in the e-mail agreement. A seller can either list the phone number in its original e-mail or require the consumer to provide it as part of their reply e-mail.
• Affirmative Action and Signature. To get consent, sellers should require consumers to reply to the e-mail with a specific phrase such as “I agree” or “I consent” and type their name (to constitute a signature). To further demonstrate a consumer’s intent to provide his/her signature, we recommend using an indicator such as “/s/” before his/her typed name.

Consent Requirements via Telephone (Voice Recordings / Key-Press)

• Clear and Conspicuous Disclosures. The required disclosures may not be grouped together with other disclosures (e.g. an order confirmation). The disclosures should be provided to the consumer separately and consent should be obtained from the consumer immediately after the disclosures have been made.
• Affirmative Action and Signature. Sellers can obtain electronic signatures/agreements by recording consumers’ verbal consent or having them press a certain button on their phone after the required disclosures have been made. When responding verbally, consumers must indicate their assent by providing an affirmative “Yes.” Consumers’ silence and/or ambiguous statements such as “uh huh” are not sufficient. If a key-press is used to obtain consent, sellers should have the capability of capturing and identifying the tone to substantiate that consent was received.
• Scripting and Dispositions. To ensure all requirements are met, agents should use mandatory scripts to obtain consumers’ consent and ongoing agent monitoring should be conducted. It is recommended that sellers create a “Written Consent” disposition to help distinguish customers that provided consent from those that did not.
• Recordkeeping. When consent is obtained via telephone, the call recordings and/or key-press tones must be retained in accordance with requirements outlined above. Sellers should keep all call recordings for the minimum time period or have a process to distinguish between recordings where consent was obtained (which must be retained) and recordings where consent was not obtained (which do not need to be retained unless otherwise required by the seller’s record retention policy or applicable law).

Suggested Language for Gaining Written Consent in Specific Contexts

Autodialing Calls to Wireless Numbers

CompliancePoint suggests companies utilize the following disclosures depending on the methodology utilized when attempting to obtain prior express written consent from consumers to place calls to their wireless number using an autodialer.

Physical lead forms for the purposes of lead generation:

“[Company Name] may occasionally have products or services that we think may be of interest to you. By signing below, you give us your consent to use automated technology to call* you at the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

* If you would like to include texting in the consent language we recommend including “…you give us your consent to use automated technology to call and text you…” in the language above.

This statement should be immediately above a signature line. The consumer must sign the form for the consent to be valid.

Physical forms utilized for other purposes beyond lead generation (i.e. an application):

“[Company Name] may occasionally have products or services that we think may be of interest to you. By checking this box and signing below, you give us your consent to use automated technology to call* you at the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

* If you would like to include texting in the consent language, we recommend including “…you give us your consent to use automated technology to call and text you…” in the language above.

The check box must be immediately next to the consent language in which the consumer must take the affirmative action to check the box to constitute his/her agreement. This statement and check box should be immediately above a line for the consumer to provide his/her signature. The consumer must check the box and sign the form for the consent to be valid. The box may NOT be pre-checked.

Web forms for the purposes of lead generation:

“[Company Name] may occasionally have products or services that we think may be of interest to you. By pressing the submit button above/below, you give us your consent to use automated technology to call* you at the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

* If you would like to include texting in the consent language, we recommend including “…you give us your consent to use automated technology to call and text you…” in the language above.

This statement should be immediately above or below the submit button. The consumer must have actively completed the form and selected the submit button to constitute valid consent.

Online forms utilized for other purposes beyond lead generation (i.e. an application):

“[Company Name] may occasionally have products or services that we think may be of interest to you. By checking this box and submitting this form, you give us your consent to use automated technology to call* you at the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

* If you would like to include texting in the consent language we recommend including “…you give us your consent to use automated technology to call and text you…” in the language above.

The check box must be immediately next to the consent language in which the consumer must take the affirmative action to check the box to constitute his/her agreement. This statement and check box should be immediately above a line for the consumer to provide their signature. The consumer must check the box and sign the form for the consent to be valid. The box may NOT be pre-checked.

Phone Calls:

The consumer should be presented with the following scripted verbiage, either by an automated system or a live agent: “Mr./Mrs. [consumer’s last name], [Company Name] may occasionally have products or services that we think may be of interest to you. Do we have your consent to use automated technology to call* you at this wireless number (###-###-####)? Please note that you are not required to provide this consent to make a purchase from us.”

* If you would like to include texting in the consent language we recommend including “Do we have your consent to use automated technology to call and text you…” in the language above.

The consumer must reply “yes” or press 1 if automated for the consent to be valid.

If Express Written Consent is NOT Obtained

Because each strategy for gaining express written consent produces its own unique concerns, it is important to understand what steps must be taken if express consent is not obtained.

For express written consent obtained through physical paper forms and online web forms, the following implications must be considered when the form is submitted absent the appropriate affirmative action as required:

• First, it is imperative to ensure the CRM system used has the appropriate dispositions in place to distinguish between records that have provided express written consent from those who have not
• Second, maintain the capability to identify all wireless numbers through the Wireless Block Identifier and the NeuStar or Telcordia portability numbers lists
• For wireless numbers, the numbers absent express written consent must either be suppressed or dialed manually
• Lastly, for landlines and wireless numbers dialed manually due to lack of express written consent, the form submitted would constitute an inquiry EBR. The numbers in this category would then need to be suppressed against the company’s internal DNC list as well as the appropriate inquiry EBR table

For express written consent obtained via telephone voice recordings, the following implications must be considered when the consumer provides a negative response when the consent disclosure is presented:

• First, it is crucial that the consent disclosure is presented to the consumer in such a way to avoid a negative response resulting in a DNC request. The disclosure language must be carefully structured such that the consumer understands this is strictly asking for consent to be called on his/her wireless number using an autodialer and not a request for consent to be called, regardless of number type or dialing method. Additionally, the consent should be applied as broadly as possible; therefore, the description of goods/services needs to be very general (“future offers,” etc.)
• Second, once the disclosure language is carefully crafted, include instructions for the agents and train agents to obtain a verbal “Yes” from the consumer in each script
• Lastly, follow steps 1 through 4 as described above for physical paper forms and online web forms

Sending Prerecorded Messages to Wireless and Residential Numbers

CompliancePoint suggest companies utilize the following disclosure when attempting to obtain prior express written consent from consumers to deliver solicitous prerecorded messages to a consumer’s wireless and/or residential number.

Physical lead forms:

“[Company Name] may occasionally have products or services that we think may be of interest to you. By signing below, you give us your consent to receive prerecorded messages sent using automated technology to the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

This statement should be immediately above a signature line. The consumer must sign the form for the consent to be valid.

Physical forms utilized for other purposes beyond lead generation (i.e. an application):

“[Company Name] may occasionally have products or services that we think may be of interest to you. By checking this box and signing below, you give us your consent to receive prerecorded messages sent using automated technology to the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

The check box must be immediately next to the consent language in which the consumer must take the affirmative action to check the box to constitute his/her agreement. This statement and check box should be immediately above a line for the consumer to provide his/her signature. The consumer must check the box and sign the form for the consent to be valid. The box may NOT be pre-checked.

Web forms:

“[Company Name] may occasionally have products or services that we think may be of interest to you. By pressing the submit button above/below, you give us your consent to receive prerecorded messages sent using automated technology to the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

This statement should be immediately above or below the submit button. The consumer must check the box and submit the form for the consent to be valid. The box may not be pre-checked.

Online forms utilized for other purposes beyond lead generation (i.e. an application):

“[Company Name] may occasionally have products or services that we think may be of interest to you. By checking this box and submitting this form, you give us your consent to receive prerecorded messages sent using automated technology to the phone number(s) above, including your wireless number if provided. Please note that you are not required to provide this consent to make a purchase from us.”

The check box must be immediately next to the consent language in which the consumer must take the affirmative action to check the box to constitute his/her agreement. This statement and check box should be immediately above or below the submit button. The consumer must check the box and submit the form for the consent to be valid. The box may NOT be pre-checked.

Phone Calls:

The consumer should be presented with the following scripted verbiage, either by an automated system or a live agent:

“Mr./Mrs. [consumer’s last name], [Company Name] may occasionally have products or services that we think may be of interest to you. Do we have your consent to use automated technology to send prerecorded messages to this wireless number (###-###-####)? Please note that you are not required to provide this consent to make a purchase from us.”

The consumer must reply “yes” or press 1 if automated for the consent to be valid.

Best Practices Regarding Text Messages

Mobile Marketing Association Companies should follow the Mobile Marketing Association’s Best Practices Guidelines and include, at a minimum, the following in the Terms & Conditions:

• STOP instructions in bold lettering
• HELP instructions in bold lettering
• Program sponsor information, defined as the program name, company name, or brand associated with the campaign
• “MSG&Data Rates May Apply”
• All material terms and conditions of the program should be clearly communicated with the offer
• Pre – checked terms and conditions are not permissible. The consumer must indicate his/her acknowledgement of the terms and conditions by manual selection of the terms and conditions
• Reference to the website where the complete terms and conditions can be accessible, where applicable

The Mobile Marketing Association recommends informing consumers who enter a text campaign how to opt-out of the campaign and expire consumers who have been inactive for 6 months. The Mobile Marketing Association also recommends supporting, at a minimum, the following opt-out words allowing a subscriber to opt-out of receiving text messages:

• Stop
• End
• Cancel
• Unsubscribe
• Quit

Companies should also regularly scan their text logs for subscribers that are attempting to opt-out but are not following the programmed rules.

Do Not Text Requests
Regardless of whether the texts are sent via an auto-dialer or a mobile device, companies must accept Do Not Text requests from consumers. Companies should treat a Do Not Text Request as a Do Not Call request and vice versa. The FCC has stated in its commentary that SMS texting and telephone calls are treated as the same (see language above). When companies receive a Do Not Call/Text request, the telephone number must be added to the company’s Do Not Call/Text list within the timeframe stated in the company’s Do Not Call Policy.

Strategies for Meeting the New TCPA Requirements
Checklist

Autodialed Calls to Wireless Numbers

• Prior express written consent language to call wireless numbers using an autodialer is clear and conspicuous
• The language does not require the person 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
• Records of all methods of affirmation of express written consent are maintained for 5 years

Prerecorded Messages to Wireless and Residential Numbers

• Prior express written consent language to send prerecorded messages is clear and conspicuous
• The language does not require the person 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
• All prerecorded telemarketing messages include an automated opt-out mechanism
• If a pre-recorded message is left on an answering machine or voicemail box, the message provides a toll-free number that enables the consumer to connect to an automated opt-out mechanism
• The dialer system is able to immediately honor a DNC request when the consumer opts-out of the prerecorded message
• Records of all methods of affirmation of express written consent are maintained for 5 years
• All DNC requests are added to the internal DNC list where they remain for a minimum of 5 years

Call Abandonment Message

• Call abandonment message states the name and telephone number of the seller on whose behalf the call was placed whenever a live sales representative is unavailable within two seconds of a live person answering the call
• An automated opt-out mechanism is provided in all call abandonment messages across all telemarketing campaigns
• Dialer is capable to immediately process automated DNC requests
• All DNC requests are added to the internal DNC list where they remain for a minimum of 5 years

Call Abandonment Rate

• The dialer is set to abandon no more than 3% of all calls per 30 days per campaign
• The dialer is set to allow the telephone to ring for 15 seconds or four rings before disconnecting
• Records documenting adherence to the call abandonment requirements are maintained for a minimum of 5 years
• The call abandonment rate is calculated by:
• (Total number of calls abandoned) divided by
• (The total number of calls answered by a live agent + total abandoned calls)

Contact CompliancePoint

Please contact CompliancePoint directly if you have questions about this guide.

Email: You may reach us at: consulting@compliancepoint.com

Phone: 770 255-1100
Ask for Ken Sponsler, Matt Cagle, or Steve Gniadek.

For more information about CompliancePoint, call us at (855) 670-8780 or email consulting@compliancepoint.com.