S3 E42: B2B Marketing and the TCPA

Audio version

B2B Marketing and the TCPA

Transcript

Steve Gniadek

Welcome everybody. Just a quick agenda, we’ll go through the TCPA, the TSR, but also state applicability. That’s one thing Eric didn’t mention there is that a lot of companies, we’ve seen this all time. I’ve been doing, I’m coming up on 22 years of compliance point and I can’t tell you how many times I’ve heard someone say, we don’t need to worry about the DNC rules because we’re only doing B2B campaigns. And that is absolutely not the case. So we’ll go over what B2B versus B2C campaigns can look like, talk about some of the key compliance considerations, and then dive a little bit into the state laws and where you need to pay attention to those state laws, talk about what those risks are and what the enforcements look like. We’ll go over some best practices, and then finally at the end, we’ll have a Q &A section. basically, mean, do telemarketing laws apply to B2B.  Again, common misconception that they do not, and you don’t need to worry about B2B campaigns at all. But let’s break this down a little bit. So first, the TCPA and the telemarketing sales rule. I mean, yes, they’re both primarily focused on consumer laws, but,  and this is key, business numbers can also serve as someone’s personal line, and those are not excluded.

Basically, if you’re calling or texting what looks like a business number, but it’s actually a cell phone that the person uses personally, consumer protections could still apply. So what does that mean? Consent rules apply regardless of whether you’re making B2B or B2C calls if you’re using an auto dialer. So again, you need to pay attention to the cell phone.

If it’s a business cell phone, is it truly a business cell phone or was it a consumer phone as well? So you could be subject to the TCPA as well as the state telemarketing laws. And then even on top of that, there are certain states like Arizona, Louisiana, New Jersey, Texas, Wyoming that take it a step further. They even restrict manually dialed calls as well, which means even if you’re not using an auto dialer, you can still run it compliance issues there, so it’s important to know who you’re calling, what type of phone number it is, and what your campaign is going to be.  And then finally, remember that for TCPA purposes, texts are treated the same as calls. Calls are treated the same as texts, so there is no loophole for that. Whether you’re calling, texting, or sending pre-recorded messages, you have to pay attention to what those consent requirements could be.

And then do telemarketing laws apply to be continued here? Tony, you want to kind of talk about these points here?

Tony Jarnigan

Absolutely, Steve. Thanks. Thanks everybody.  You know, yeah, that theme that you just touched on there, Steve, about, you know, dual purpose lines or dual purpose numbers. I mean, that’s going to be a constant theme running throughout this webinar, right?  If you know again, if you’re calling for true business numbers.  Then there are exemptions that apply, but because of that possibility of dual-purpose numbers nowadays in today’s world. It’s just better to be buttoned up on all this stuff. So what we’re going to do is sort of take a look at all the requirements that we would normally look at for B2C and sort of do a compare and contrast analysis as to what you know B2B has in common with B2C and as well as some distinctions and finer nuances between the two.  So just to start off, just as we would recommend for business-to-consumer, we recommend that B2Bs have a do not call policy and that you perform adequate training around that policy and for callers to be scripted as well. So the DNC policy should at least outline how you comply with DNC requests as businesses in most cases do have a right to ask you not to call them anymore. And at least 10 jurisdictions, we’re gonna look at those here in a little bit.

But of course, you know, we think is a good idea to honor DNC or do not text requests across the board. Especially because again, because of the dual-purpose phone possibility.

Steve Gniadek

Especially let me just chime in real quick Tony and especially with the do not call policy It’s not something that’s typically asked for So if one of your agents does happen to get a request for a copy of your do not call policy It’s usually someone that’s trying to get some money from you, you know So it’s best is just to have the process to send the policy out to them and usually they’ll move on to their next person.

Tony Jarnigan

Yeah, good point. Same is about to touch on that. So we recommend that you know you know if you have any existing policies out there that you know, you know there’s some new rules in place. We would recommend that you update those policies to ensure that you know you’re saying you’ll honor opt outs received through any reasonable method  as soon as possible. How you comply with the DNC policy request as Steve just mentioned.  And again, you know we we normally think of this and just in the B2C world, right? But if you’re calling personal sales.

We think it’s a good idea to comply in the B2B world as well. And then ensure your training on all this policy, right? And that your callers know how to respond to do not call, do not text requests, and possible, as Steve noted, and possible requests for  your DNC policy. And how to disposition it in your system, right? Not only how to respond to the person that’s calling, but also to how to disposition it in your system.

We think it’s a good idea in terms of scripting. We think it’s a good idea that if you use scripting that you should use scripting that identifies the caller and the purpose of the call. Call back information. As well as and this is where some of those state level requirements come in. This Steve mentioned call recording disclosure, for example, you know that should be provided on all calls. If the call is recorded and monitored, of course, we recommend that it be provided regardless of whether you think you’re calling into a one party state or two party or all party state. Also, and believe it or not, there’s also these pesky permission to continue states out there, right? That require sellers to basically put the ball back in the court of the called party, if you will, after the introduction and say something like, know, I’m called, this is Tony Collin from XYZ company for thus or so purposes. And, you know, can I provide you with those details.

Something to put the ball back in the court of the call party. And, you know, many states that have those no rebuttal, or excuse me, permission to continue no rebuttal requirements do exempt B2B, but some do not. So, you know, they would still apply. so, and then for record keeping, you know, pure B2B is generally considered to be outside the FTC’s record keeping rule. And there were some updates that went into effect just last October.  know, businesses weren’t necessarily considered to be in scope for the record keeping requirements.  But we still recommend maintaining the same evidence, know, consent artifacts, scrub timestamps, dialer mode settings and opt out logs. And this is all because of having the record puts you in the best position to defend yourself if there’s a lawsuit against you,  especially because of the possibility of calling dual purpose lines.  This reminds me too of an important point because you want a record of the call, we think it’s very important that you require all calls to be placed through a centralized platform.

So we just think allowing calls from outside such systems or on personal phones is just fraught with potential issues because then you don’t necessarily have a record of the dial. So again, we just think it’s a good idea to place those calls through a centralized platform that keeps records for you.

Steve Gniadek

Yeah, evidence is your best friend here. I mean, a regulator is not going to take your word for it. You’re going to have to defend yourself with the evidence of the call logs and the scripting and the campaigns and things like that. So just keep that in mind.

Tony Jarnigan

Telemarketer registration. You know, this is a big one. B2Bs don’t think that they have to register as a telemarketer. There are some 34 states plus the District of Columbia that require sellers in general to register as a telemarketer, but each of those has certain exemptions, and a common exemption is if you’re B2B.

But still there are about 14 or so of those states that do not expressly exempt B2Bs. But if you’re going to, here’s an important point though. If you’re going to rely on the B2B exemption, all of your calls must be B2B, right? You can’t just be because you play some B2B calls. All of them must fit within that bucket and you can’t mix in B2Cs. If there is no B2B exemption,

In a certain state you can look at other other exemptions, right? Some states exempt publicly traded entities or if you’re only calling with consent or some other possibilities. You will see a note there that says be careful with Texas because you know you probably a lot of our listeners have heard recently that you know there’s this new Texas law out there that affords.  Well, it’s not so much that it’s it’s a new law that many of the requirements have been in place, but it’s just that now the private right of action.

has been attached to many of the basically all of the provisions of telemarketing in Texas.  So that means that consumers have a right. They don’t have to go through a regulatory body to issue a complaint, right? They can see you individually. Texas does have a limited B2B exemption, but only if you’re intending to resell property or goods to resell property or goods or use property or goods to recycle or manufacture. So.

Again, just look at that and make sure that you’re, you you’ve got a defensible position that you think the exemption applies to you there. So, as Steve mentioned before, the DNC suppression, that’s a huge area of concern. And also for B2Bs, not only B2Cs,  but for B2Bs in their own right, as some requirements specifically apply to B2B, but also because of the possibility, again, of those dual

purpose numbers. There are nine states, plus the District of Columbia, that specifically require B2Bs to honor DNC requests,  but for obvious reasons. mean, you know, it just makes best practice sense to apply this across the board.  The FTC does exempt B2B from the national suppression for true business numbers,  and the traditional thought has been you know, therefore the B2Bs don’t need to check the National Registry for non-exempt calls. But because of the dual purpose numbers, we highly recommend suppression for the non-exempt calls against the national list and state list. in particular  is one of the 11 states with their own DNC list, and they specifically allow business numbers on their state DNC list.  When Mississippi had their own list, B2Bs were required to scrub for Mississippi numbers on the national list, and we still think that that’s a good idea.

Steve Gniadek

Actually, let me just touch on that real quick because they did state you have to check against the Nationalist. So Mississippi said yes, you can put business numbers in our state DNC list and then about six months later they did away with their state DNC list, but they were pretty clear. They said you still have to check for Mississippi numbers on the national list, so I just want to emphasize that point.

Tony Jarnigan

Yeah, good point, Steve. And then just earlier this year, Missouri proposed allowing businesses to add their numbers to its do not call list, but for whatever reason  that measure failed.  But as Steve noted, consent, right? If you’re calling, this can’t be emphasized enough. If you’re calling a wireless number  using regulated technology, which includes pre-recorded or artificial voice, you must still gain prior express written consent regardless of your B2B purpose. And that can’t be overemphasized. And again, as Steve noted earlier, unsolicited non-consented calls are prohibited to wireless phones, regardless of whether you’re calling a consumer or a business in Arizona, Louisiana, New Jersey, Texas, and Wyoming.

Steve Gniadek

Alright, let’s get into some of these other things like caller ID, calling time restrictions and guidelines, as well as monitoring enforcement. know, caller ID rules still do apply, so even if you’re calling a business line, your caller ID should be truthful. Display a number that can actually be reached if someone calls it back. And then also it’s best practice to monitor how your numbers being labeled by the carriers or the apps. So if you’re if you’re checking that and you find out your informational calls from an HVAC company, for example, are being labeled to spam or scam or telemarketer. It’s probably a good idea to try to get that wait listed so that it isn’t being labeled that way to reduce the likelihood of someone answering that call.  Speaking about call time restrictions, federal law states you can only call between 8 and 9 PM local time. Porting a note here, local time, right? Because we all know.

cell phone portability and actually VoIP numbers even. I mean, someone could be located anywhere in the United States or even the world, and you may not necessarily know that if you’re just going by their area code. So if you know an address, try to follow the address or zip code of the state as opposed to the area code.  Some states do have stricter rules when it comes to calling time restrictions, so again, most of those only apply to residential or consumer calls. So if you’re truly calling business lines. You B2B calls are generally exempt, but again, just to stay safe, you want to know what the applicable state rule is and document your basis on treating that calls B2B campaign. And then lastly, monitoring enforcement as well as guidelines. It’s critical to maintain.

So to speak, an internal playbook, you know, document your practices, your procedures for outreach. If you’re applying a B2B exemption, spell out why it applies, what conditions you’re meeting there, and then monitor your teams for compliance-related matters and enforce those guidelines consistently. know this is an area that regulators are looking for just to make sure that you’re trying to follow your policies and procedures there. Tony, anything you want to add to that slide?

Tony Jarnigan

No, I think you covered it all, Steve.

Steve Gniadek

Alright, some other key compliance issues. Consent requirements we talked about from prior Express consent versus prior Express written consent. Yeah, you know, as Tony alluded to, even though we may be calling some some wireless numbers, if it’s a marketing campaign and you’re using a regulated technology such as an ATDS, you’re going to need prior Express written consent. Whereas just prior Express for consent could be those informational type calls. So as long as the person that your calling has provided that phone number when they signed up, that would be prior express consent to call those numbers. Like Tony mentioned, the do not call restrictions could also be applicable again at the federal level. If it’s true business line, it’s not covered by the National Do Not Call Registry, but as Tony mentioned earlier, states treat things differently like the Mississippi example he mentioned in Pennsylvania.

We’ve also seen a case of Colorado. This is many, many years ago now, but it was a I believe it was a realtor that had published their their landline is also their business line. So it was a residential phone and it was published as a business line. So they were getting calls for B2B campaigns that consumer sued and actually won because even though Colorado does not allow business numbers to be on their state DNC list.

Again, it comes down to a dual purpose phone line and that was what that call was about. So they did uphold that that ruling.  Important to know you can’t disguise a B2C campaign as a B2B, so you can’t get around consumer restrictions by pretending your outreach is business. If the line belongs to an individual or a home based business or it’s their cell phone, you should treat it as B2C. You know, good example might be if you’re calling to offer cable services, but you’re ignoring DNC rules because it’s a B2B campaign calling someone at a business number and you get a hold of them and they say, well, I’m not interested or that’s not my area here at work. Then the turn around that call and try to ask him if they needed it at home. Do you need Internet at home or cable TV service at home? So you want to make sure you’re not disguising that and trying to use those exemptions  in an inappropriate way.

Like Tony mentioned, true business numbers don’t need to check against the national do not call list except for Mississippi. You know, pure business landlines generally safe from a federal DNC restrictions, but again, be aware of those state laws like Mississippi and Pennsylvania. And then like Tony mentioned, regardless of B2B or B2C, if a business asks you not to call them.

They probably don’t want to hear from you. It’s best just to honor that across the board, regardless of those 10 states that require it versus the other 40 that may not. That’s what generates consumer complaints when someone asks you not to call them and then you continue to call them. And then finally, like Tony mentioned, emphasize record keeping. You need to keep those clear records of consent. Any internal DNC requests what your campaign practices are.

And again, that that’s going to document and provide you with evidence you need to defend yourself if necessary. State law differences will get into this again. B2B space. You can’t assume the rules don’t apply. Some states will impose those restrictions. It can impact your business calling. You know, again, Pennsylvania allows those numbers to be on the state DNC list. Mississippi, you need to make sure you’re not ignoring those.

And then again, Colorado and those home-based businesses. You have to be careful of all of those things. And then on top of that, there are several states. We’ve heard the many TCPA’s like Florida, Oklahoma and Maryland.  Those can apply even if you’re dialing cell phones, even if it’s a business contact. So just make sure you’re aware of what those rules are. We talked about the internal DNC list obligations, so even though there’s 10 jurisdictions that require.

To honor it, it’s best to do that across the board caller ID as well.  For instance, South Carolina, if you look at their caller ID rules, South Carolina requires you to actually have a physical presence in the state. If you’re going to display South Carolina area code so important to to know that and then finally, like Tony mentioned the call recording, there’s two party states. There’s one party states. There’s all party states.

But again, it doesn’t matter if it’s B2B or B2C, if you’re recording those calls, you should have your agent disclosing that those calls are being recorded. Risk and enforcement, it’s important one. So a lot of B2B marketers, again, assume TCPA doesn’t apply to me.  It’s just a consumer protection law. And as we’ve talked about, and hopefully you’re getting the gist now, that that’s not the case.

The TCPA does allow private lawsuits. Statute or damages can be high anywhere from 500 to 1500 per call or text. And again, that can add up pretty quickly if you’re running campaigns on a large scale. Important to note the plaintiff’s bar does at times target even B2B campaigns. Courts have made it clear that businesses are not necessarily immune.

We can use the example here of chinetteversesports.com and the Ninth Circuit. Porch.com was sending text messages to home improvement contractors. So you know, mostly businesses offering client leads. But again, as you can imagine, they’re calling contractors. They’re probably getting a whole lot of cell phones, but they argued that the do not call protection shouldn’t apply to them because they were contacting businesses. The court disagreed pointing out.

TCPA specifically applies to any person or entity. So obviously that means a business  can sue, can be sued, not just individuals. So the key takeaway here for B2B is don’t assume you’re in the clear. You know, the risks can apply.  consumer, they do apply in consumer campaigns, can also apply to B2B outreach.

Tony Jarnigan

Right, you see that reminds me of, you know, you know about this. We had a potential client reach out to us and they were. They wanted to offer businesses information on franchise opportunities, right? And they  basically said, you know, we think we’re good. And by the way, this is a theme of everything we’ve already talked about. You know, we think we’re good. We’re B2B only.  We’re just going to mass text businesses that we’ve basically.

scraped off the internet.  And since we’re not cold calling anybody, clearly they’re going to be cold texting them, right?  But we think we’re good. But we just wanted to check with you guys. Any concerns? Well, yeah, there’s a lot of concerns, right? So from both the regulated technology perspective and the do not call perspective, right? You’re going to be mass texting these businesses using no doubt regulated technology.

So again, you need express written consent. And also you’re likely going to be calling the numbers that are on do not call lists.  So again, that’s just, I think that sort of highlights and brings a lot of this that we’ve been talking about altogether here.

Steve Gniadek

Yeah, and that’s a great example. Time in it. Unfortunately, a lot of companies won’t bother to double check. At least this company check to see would there be any issues with this when a lot of companies might assume there aren’t any. So I’m just going to go ahead and do it and then they’re going to get in trouble before it’s too late. So  great point. Great work. Real world example there. So let’s talk about some of the best practices for B2B campaigns.

You know the best practices can still apply even though it’s B2B. You should be obtaining clear and documented consent. Fall may not be necessary. It’s definitely going to help you from a defendable position, so some of those B2B calls could fall under exemptions, but consent is still your strongest defense. You know, especially for pre recorded messages, texts or outreach to wireless numbers. If someone says well, I never gave you consent and you have evidence of where that leap came from and you can clearly state or see that they entered their information. There were disclosures there. You have that consent.  Scrub numbers against the applicable DNC risk lists regularly. Again, some states apply the do not call restrictions even the business numbers, so always scrub against any applicable federal or state list to stay safe. Like Tony mentioned, training your staff on what those compliance obligations are. You know, make sure your sales and marketing teams understand.

Where do the rules differ in a B2B world versus B2C? So many violations to happen simply because the frontline staff didn’t know that there were nuances or that there were rules they did need to pay attention to. So important to make sure everyone is trained on that. And then also audit vendors and third parties. If you’re outsourcing, calling or texting,  you’re still liable or you could still be held liable, so you need to confirm with your marketing partners or third parties that they’re following the same compliance procedures that you are in the third hearing to what those rules are. And then lastly, again, keep written policies and compliance logs. Document documentation again as your as your safety net. If you’re ever investigated, you need to be able to show all of those compliance processes, training logs, things like that. So key takeaways.

You know, obviously federal and state telemarketers can apply in B2B context, so pay attention to that. State laws often do go further than what the federal TCPA or the TSR states and a strong compliance program definitely reduces risk, but also builds trust with consumers.