S3 E18: Are Recent Rulings Changing the Telemarketing Regulatory Landscape?

Audio version

Are Recent Rulings Changing the Telemarketing Regulatory Landscape?

Transcript

Jordan Eisner (00:00)

Alright, hello everybody. Welcome to another episode of CompliancePointers joined by Megan Rose today who will give an intro about here pretty soon, or as I like to call her Megan Rose. Rose all day. We’re going to be talking about some significant recent court rulings and how they could impact the telemarketing regulatory landscape. But before we do that, you should know that Megan is a senior marketing compliance consultant at CompliancePoint.

Megan, you gotta be coming close to 10 years now with the company. Coming up on nine, when’s the anniversary?

Megan Rose (00:34)

Coming up on nine in January.

Jordan Eisner (00:40)

So you just hit it. Okay. Coming up on eight and a half. Awesome. That’s a long time though. That’s a good tenure. She uses her expertise and data analytics to help our customers operate within the bounds of the Telephone Consumer Protection Act, the Telemarketing Sales Rule, and other direct marketing regulations at the state level and elsewhere. I will add about Megan, and I think this kind of maybe as a shameless plug for CompliancePoint. While we’ll get a good sense today of her awareness of these regulations and how to advise compliance on them operationally. It’s really the work that she does with data and data analysis. That’s been, I think, just the most valuable to our clients over her eight years with the company. She’s really taken that under her wing and we won’t get too much into it on this podcast today. But I think when you talk about some of the data assessed, and the clients assessed for and the millions and millions and millions of records looked at, the experience is pretty vast. So Megan, it’s great to have you on.

Megan Rose (01:46)

Yeah, great to be here.

Jordan Eisner (01:49)

So we’re going to be talking about two big ones this year. And if you’re in this industry or keep tabs on it, you’re probably aware of them. It’s the revocation of consent ruling and then the one-to-one consent ruling, both of which have been revoked or delayed or done away with, or that’s what you’re going to add color on today, right? So let’s start with the recent one. Can you tell us about the recent consent revocation ruling and what it means for businesses?

Megan Rose (02:16)

So like you said, sort of right out of the gate this year, the FCC came out with two pretty big rulings. The replication of consent one, like you said, that’s the one that sort of just went into effect last month. And there are a couple key takeaways I would take from this ruling. The top one being it changes the grace period for internal do-not-call requests. So there used to be a 30-day grace period to honor these, they’ve reduced that now down to 10 business days. So it’s always been as soon as processes allow not to exceed. So now it’s as soon as processes allow not to exceed 10 business days. So this can get a little tricky for companies who maybe aren’t relying on automated suppressions of their internal list of adding numbers to the list, making sure it’s dispersed through all of the different departments that might be outbound calling or texting or having to suppress against that list and staying within that 10-day window.

Jordan Eisner (03:18)

For our for our watchers and listeners to Megan internal DNC list ID and see so and you correct me if I’m wrong on this. My understanding is that that’s there’s a national do not call list and then some states have their own do not call list that consumers can be on. But this is a company specific list that if I say hey Megan Rose incorporated stop calling me.

Regardless of a man in national do not call us or state DNC list you Megan Rose Corporation need to keep track of my name and number and put it on an internal do not call us and not call it and the suppression used to be 30 days and basically 10 business days, two weeks. It’s been cut in half for how often you need to subscribe or suppress against your own internal do not call us right?

Megan Rose (04:07)

So talking specifically internal company list so. The next big point. For the revocation of consent, I would say would be the reasonable means so consumers can revoke their consent through any reasonable means and just a quick refresher in case you don’t know you need express written consent to send marketing calls and text with automated technology, but you just need express consent for informational calls and texts. And that’s typically just the provision of the phone number. So if the consumer is giving you their phone number, you’re good to send informational messaging and calls, but you need like the higher level express written consent for marketing. And people can revoke their consent at any point. It can’t be a condition to do purchase.

 So if I’m signing up online, I don’t have to check that box to say I want your marketing email or marketing texts or calls. And it’s through any reasonable means which. The FCC’s decided to take it a step further than just responding back stop. They’ve actually listed a full list of words in the ruling, so unsubscribe, cancel quit. All of those are reasonable means, but we typically would recommend to take it a step further. Where do you get any sort of expletives or like middle finger emojis? Anything like that? Take that as knocked out request.

If someone’s going into a store and telling the receptionist, hey, I don’t want these calls or texts anymore, take that as the opt out request. So it’s very broad on what, I mean, it’s not defined. So we recommend take the broad definition. Reasonable means any indication they do not want communications from you, add them to your internal list. And I guess the next biggest part for a revocation of consent, I think I said this earlier, this is kind of a big rule, is comes around revoking consent for those informational messages I was talking about.

We work with a lot of companies and I can say from my experience working with sort of larger financial institutions or very like complex insurance agencies, you see a bunch of different departments that are maybe sending out alerts or notices that just aren’t communicating with each other. So think about your bank, how sometimes you might get a fraud alert. Hey, is this you using your card? Or you might get a low balance text. Hey, like you have less than $5 in your account. Typically, your bank isn’t using the same system to send those fraud alerts as they are to send those low balance alerts. So now if someone revokes their consent and takes their express consent away to automatically receive those alerts, your fraud system and your low balance system, they’re not talking to each other. So it’s very hard to sort of coordinate that opt out across all instances. And what this rule does is it says that you have some sort of preference center online where the customer is opting into receiving certain kinds of messages. So if I say, I want the low balance alerts, but not the broad text, then that opt out consent revocation is only at that level. And you can send like a one-time followup text after they opt out and say, hey, you’ve opted out of informational text. Are you sure this is what you want to do? Update your preferences online.

That’s another key piece that I think is probably going to be the hardest to implement. Yeah. Making sure all of your systems are talking to each other and that you’re honoring the requests universally instead of in a siloed fashion.

Jordan Eisner (07:40)

Yep, yep. And so that’s a good segue into my next question. Before that, I think I misspoke at the top of this because I both have been delayed and maybe one has been delayed. I think one to one was just struck, right? Or is it still? But but the consent revocation, as you put, is in place, but it’s not effective yet, right? That’s a year from now or am I crossing my wires?

Megan Rose (08:05)

It’s done. It’s a little tricky. The FCC did come out with a delay for this ruling, and it’s not exactly clear on which part is being delayed. typically, I mean, the most conservative approach is what we’re going to recommend. We would say unless you are a large financial institution or just a huge insurance company where you have those siloed opt-ins and all of those different systems that might not be talking to each other.

Your best bet is probably to go ahead and comply with the rule today because the delays not going to impact you. So the FCC sort of came out and said we’re giving companies one year to get everything straightened out to universally accept revocation of consent. So I would say current state today businesses. If someone saying quit texting me, quit texting them. Like don’t wait. Think you have the one. Yeah, just the best practice overall.

Jordan Eisner (09:10)

It seems like a good practice.

So I was going to ask, you know, what should businesses be doing to prepare? You kind of went into it a little bit, you know, ensuring I would say good policies and practices for managing opt-outs, awareness of the rule, maybe operating as if it’s in place and it’s going to affect them. Of course, we’re consulting firm. We always recommend the most conservative approach. But what would you add, if anything, maybe move on to the next question, but in addition to that for businesses as they look at how to prepare for this going into effect next year.

Megan Rose (09:44)

I would say just one, making sure that you’re honoring those internal requests within the 10 business days. Don’t rely on the 30 day exemption and even sooner if possible. I mean, it says as soon as possible not to exceed. Most businesses have the ability to honor those immediately or within 24 hours.

So tightening that up and then probably just training of anyone who has contact with a consumer so that they know how to honor and take do not call requests and revocation of consent requests and pass those along.

Jordan Eisner (10:17)

Yep, yep, because that’s probably the most proactive best thing you do is not message people that have said stop messaging me.

Megan Rose (10:25)

Yeah, and it’s probably going to be a little manual. I know a lot of companies rely on their texting platforms to honor those unsubscribe requests, but plaintiffs are tricky. I mean, they’ll send an entire sentence saying I don’t want to receive these texts anymore, and it’s going to take someone like manually going through and checking them and saying OK, they didn’t just say stop.

Jordan Eisner (10:47)

The AI still hasn’t caught up with that. Not yet. Well, you said something there too, and I probably should have disclosed this at the top of it. Not disclosed, but a caveat at this at the top of the call. said anybody that has consumer contact operations or direct with consumer operations or, yeah, contact, because I’m referring to this as telemarketing regulations, you and I. It’s in the name even, telemarketing sales.

Megan Rose (10:50)

Yeah.

Jordan Eisner (11:15)

You know, telephone consumer protection act, this is a regards around telecar telemarketing, but the definition of telemarketing is much broader than most people think. These are not people dialing out of the phone book. You know, these are businesses that you’ve consented to a lot of times that some sort of form they’re calling their texting could be B2C with TCPA could be B2B. And then to your point, it’s not always for solicitation purposes either sometimes and you’ve mentioned informational text messages. So probably should have caveated that at the beginning of podcast. Hopefully we didn’t lose any listeners or viewers who thought, well, this is about telemarketers and that’s not us. It’s a broad definition. And there’s a broad application of these regulations, even if it’s not for sales purposes.

So I digress. We’ll continue to move on. So let’s talk about the one-to-one consent rule that was struck. Are courts becoming more friendly towards the telemarketing industry, the consumer contact industry in this administration? Was it always doomed? What’s the sentiment?

Megan Rose (12:27)

So one-to-one was very controversial, in my opinion, just because the FCC sort of set out to reshape how the lead generation industry works. So as you might know, say you’re shopping around for insurance, you’ll go online, fill out a form, and get a call from four insurance companies offering you puts, One-to-one looked to sort of change that to where you could only give consent to one company per disclosure.

And future state, I mean, we didn’t really know how that would work. Would you go in and just check a box for each company that you wanted to hear from? Would they dynamically change the disclosure?

Jordan Eisner (13:10)

How would a consumer even know, too, right? You can see both sides of it.

Megan Rose (13:14)

Right. That ruling, that rule was met with a lot of pushback, particularly from lead generators. And it was actually struck down in a court case where the main argument was that the FCC was overreaching. So they were extending their authority. They didn’t have the authority to make that rule and that it was very, it was an anti-consumer. Because if I’m shopping around at insurance companies, I want to hear the best quote. I want to hear what everyone has to offer.

So those are really the two key points. And I mean, the ruling’s been appealed. It’s sort of dead in the water, short of the FCC going back and revising and introducing a new rule. That’s not to say it’s not going to go through at the state level. So already we’ve seen North Carolina introduce legislation with one-to-one consent language. Again, that’s just proposed. think the language has already been removed from the bill, but that’s not to say it’s not still circulating out there and that it didn’t come out at the state level.

Jordan Eisner (14:17)

They gotta strike the right balance because to your point, maybe not fair to the consumer to get multiple options and the best deal for said consumer, but. I’ve I’ve completed this sort of. Legion forms you’re talking about, and it’s it’s not minutes, it’s seconds until you’re getting. Ringless voicemails, text messages, phone calls. I mean, it’s ridiculous and you know.

There’s no chance that they looked at your profile. I just think it’s impossible. It’s a lead. I’m calling it and I’m trying to sell it.

Megan Rose (14:58)

Yep, yeah, like you said, very strikes a balance, but I think. Sort of the consensus was the FCC overreach a little bit with that,

Jordan Eisner (15:08)

So if that’s your opinion that it’s more so that wasn’t balanced or that wasn’t ready or was complicated from the beginning, then it’s not necessarily that they’re getting friendlier on the telemarketing industry. So maybe there’s, and not that you would have said, even if I think the administration and FCC was getting a little bit more friendly, it’s still, we probably have pause about saying, okay, loosen up on compliance. Not exactly in our interest, but we don’t think that’s the case.

Any reason to operate any different than we would have recommended for businesses this year and years prior in terms of, you know, compliance and risk associated with it, maybe even because of states starting to try and act some of these laws.

Megan Rose (15:54)

Right, I mean I would say no reason to act any different, but we’ve always recommended having very specific consent disclosures anyways. I mean we would say any company relying on the consent needs to be named in the disclosures. We’re not really big fans of having hyperlinks out to a list of 200 companies where you’re not sure who you’re going to be receiving a call from.

Yeah, we recommend typically tapping it and if you are buying leads try to do like one to one leads, which I know it’s not one to one consent, but try to just, you’re the only one buying that lead.

Jordan Eisner (16:32)

It’s nice in theory. It’s got to work for both sides.

Megan Rose (16:35)

I know they’re more expensive but.

Jordan Eisner (16:38)

Okay, well, I guess sort of in wrapping up, maybe to give a teaser about something we could podcast on in the future or whatnot. What are some current trends and lawsuits coming from the consumers that you’re seeing around these areas or elsewhere?

Megan Rose (16:53)

So I mean, like you said, trends. It’s always changing. When I started at CompliancePoint, the hot topic was dialing with a system that has the capacity to be an auto dialer. We’ve moved away from that after Facebook. We had our little trend of national do not call dials without an EBR and today we’re seeing a rise of reassigned number database.

So someone will like, my neighbor gives up their phone number. I’ll go to Verizon and say, hey, I want this number. And then whenever someone calls asking to talk to my neighbor, I’ll file a lawsuit, say, nope, you cold-called me. I’m not my neighbor. So the reassigned number database, that’s a hot topic coming up.

And just within the past two to three months, I’d say, we’ve seen literally hundreds of suits filed around calling times because customers alleging they’re receiving like automated text outside of eight to nine, which is the federal standard. It’s just primarily one law firm out of Florida. They are just filing suits like that. I mean, we’ve seen hundreds of them across a ton of different industries where they’re saying you texted me at like 730 in the morning. So just because you have consent to send automated text to someone does not exempt you from the calling time rules. We recommend staying within those. So those are sort of the two topics today.

Jordan Eisner (18:18)

Okay. Topics that stay tuned for our listeners and watchers. All right, Megan, this is fun. Thank you. It’s good having you on. having me. And for our viewers and our listeners, continue to subscribe and leave us a review if you’re liking the content. And if you ever have any questions, Megan and I are both available on LinkedIn. You can ask us about this podcast or other things you’ve heard out of CompliancePoint.

And you can of course interact with CompliancePoint at CompliancePoint.com and inquire for any services or expertise at connect@CompliancePoint.com. Till then, thank you everybody. Be well.