7 Common TCPA Misconceptions

By Rich Hamilton

Does the Telephone Consumer Protection Act (TCPA) confuse you? If so, you are not alone.

This past July, the Federal Communications Commission (FCC) clarified TCPA through a Declaratory Ruling. Telemarketers have been scrambling to understand and implement updated policies, procedures, and technologies in order to continue to ensure compliance with the TCPA. The telemarketing regulations are complex. And with this complexity, there is some confusion.

Here are seven common TCPA misconceptions:

1) B2B Calls Do Not Need to Comply with the TCPA: Wrong. Business to business (B2B) calls are not exempt from all provisions of the TCPA. There are many aspects of the TCPA that need to be followed with B2B calls. Here are two areas:

  • Calling Wireless Numbers: Some level of consent is required in order to use an automatic telephone dialing system (ATDS) when calling any wireless telephone number, regardless if the call is B2B.
  • Call Abandonment: Call abandonment rules apply to all types of telemarketing calls, regardless if you are calling consumers or businesses. Telemarketers are not allowed to abandon more than 3 percent of live answered calls per campaign per thirty-day period. A call is considered abandoned if a live agent is not connected within two seconds of the person completing their greeting. If a call is abandoned, it is required that a recorded message play promptly. This recorded message must include the name and phone number of the seller, state that the call is for telemarketing purposes, and not contain any type of solicitation. The message must also allow the person being called to place their number on the DNC list. (See misconception #6.)

2) Non-Sales Calls Do Not Need to Comply with the TCPA: Wrong. Regardless of the reason for the call, if you dial a wireless number, you must have either Prior Express Consent or Prior Express Written Consent if calling using an automated telephone dialing system (ATDS). Some companies think information calls and surveys are exempt from the TCPA. This is not true when it comes to placing calls to wireless phone numbers.

3) Numbers Ported from Wireline to Wireless Are Not Considered Wireless Numbers: Wrong. Telemarketers must subscribe to Neustar to proactively identify numbers that have ported from landline to wireless. Lucky for the industry, there is a fifteen-day grace period to identify the ported numbers and update calling lists.

4) A Number Reassigned from One Wireless Subscriber to Another Is a Safe Harbor: Wrong. In the 2015 TCPA Declaratory Ruling, the FCC made it clear that if a wireless number is reassigned, it is the company’s responsibility to identify that and remove the wireless number from its calling list. A limited safe harbor was provided that protects only the first call to a reassigned number, no matter the outcome of the call. Also note that those who receive phone calls from telemarketers have no duty to tell the telemarketer that the phone numbers have been reassigned.

Are you getting the feeling that the FCC doesn’t like us?

5) A Company Using a Third Party to Make Calls Doesn’t Need to Worry About TCPA: Wrong. The FCC made it clear in the Declaratory Ruling that sellers using an outsourced telemarketing company may be vicariously liable under federal common law agency-related principles. Therefore, ultimately it is the responsibility of every organization to monitor and enforce the compliance of companies that call on their behalf. This can be done in many ways, including conducting audits of call detail records, listening to call recordings, and on-site visits.

6) A seller or telemarketer can offer the option to press “X” for the next available agent during the abandon call message in order to process DNC requests: Wrong. Abandon call messages must have an automated interactive voice or a key-press-activated opt-out mechanism that enables a DNC request before terminating the call. This process must automatically add the phone number to the internal DNC list and end the call immediately. Offering to transfer the person to the next available agent is not allowed.

7) TCPA Does Not Apply to Text Messages: Wrong. The FCC has stated that a text (or SMS) is considered the same as a phone call under the TCPA.

Is your call center or outsourced telemarketing company fully compliant with the TCPA? If you are not sure, now is the time to find out. Take the steps necessary to reduce your risk by becoming compliant as soon as possible.

Rich Hamilton is the director of implementation and team improvement leader for Quality Contact Solutions. Rich is responsible for implementing new programs and managing the continuous improvement process of existing programs. Prior to joining QCS, Rich spent nine years working in and managing a variety of small and large call centers.

[From Connection MagazineMay/June 2016]

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