contact center changes are coming: are you ready?€¦ · (robocalls). additional rules for...
TRANSCRIPT
webinar
CONTACT CENTER CHANGES
ARE COMING: are you ready?
Two important things to note: This webinar is to provide you with information of a general nature about
federal telemarketing rules and requirements. It is not intended to provide you with, and you should not construe it as providing, legal representation or advice. Your specific facts and circumstances may affect the legal outcome, so you should consult with an attorney if you have specific legal questions.
The information contained in this presentation and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is presented to. They are the property of Corvisa Cloud, LLC. Unauthorized review, use, disclosure, dissemination or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful.
Thanks for your Coopera/on!
Disclaimer
Meet the Presenters
President, CorvisaCloud
Litigation Partner, Quarles & Brady
Matt Lautz Greg Everts
What are the regulations
What the regulations mean for your business
Precautions
Tips & Tricks
What you’ll learn
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Overlapping rules & regulators
FEDERAL COMMUNICATION COMMISSION (FCC) General jurisdiction over telecommunications
FEDERAL TRADE COMMISSION (FTC)
Jurisdiction over unfair & deceptive trade
practices in interstate commerce
Telemarketing
FTC Carve-outs
Carve-outs (fact specific)
• Intrastate telemarketing • Banks • Credit unions • S&Ls • Common carriers (e.g., airlines, long distance phone
companies) • Nonprofit organizations
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Companies that contract with an exempt entity to provide telemarketing services may still be subject to FTC jurisdiction.
NOTE
FCC
Telephone Consumer Protection Act (TCPA)
47 U.S.C. § 227 & 47 CFR § 64.1200
Focus: Regulation of calls using automatic telephone dialing systems (ATDS) and artificial or prerecorded voice messages (robocalls). Additional rules for opt-out, internal do-not-call list, abandoned calls.
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Same rules apply for text messages!
FCC
Telephone Consumer Protection Act (TCPA)
AUTOMATED TELEPHONE DIALING SYSTEM (ATDS): Equipment that has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator, and (B) to dial such numbers. 47 U.S.C § 227(a).
The FCC and courts have interpreted this to be applicable whether or not this capacity is being utilized.
FTC
Telemarketing Consumer Fraud and Abuse Prevention Act (TCFAPA)
15 U.S.C. § 6101 et seq.; Telemarketing Sales Rule, 16 CFR § 310.
Focus: National Do-Not-Call Registry and telemarketing sales (any “plan, program, or campaign . . . to induce the purchase of goods or services or a charitable contribution” involving more than one interstate telephone call).
Dual purpose calls = telemarketing calls.
Do-Not-Call Implementation Act
What is it? Law requiring the FCC to maximize consistency between FCC rules and the FTC’s Telemarketing Sales Rule
FCC - Notice of Proposed Rulemaking (2010)
• Harmonize FCC and FTC rules • More consumer protection (address consumer frustration,
increase in cell phones) • Avoid over-deterrence
Final rules announced in 2012, with changes effective October 16, 2013.
Prior express written consent
Established Business Relationship (EBR)
Opt-out requirements
Abandoned call rules
What’s New?
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Prior express consent Not defined in TCPA; definition is
developing
Can include oral consent, but not EBR
Does not exist where caller has grabbed the telephone number from
caller ID or another source
Not necessarily transferable--i.e., consent should relate to specific product/service
Types of consent
Prior express written consent Requires consent in writing
Signed by consumer (in any way permitted by the E-SIGN Act, including email, website form, text message, telephone key press, or voice recording)
Requires “clear and conspicuous” disclosure (consumer was told what he/she was agreeing to)
Unambiguous agreement (consumer unambiguously agreed to receive calls at phone number he/she provided)
Can’t “require[], directly or indirectly, that the agreement be executed as a condition of purchasing any good or
service.”
Types of consent
Calls to mobile/wireless numbers Previously: Calls using an ATDS or artificial/pre-recorded messages to any telephone number assigned to a cellular telephone service – regardless of purpose – prohibited without prior express consent. NEW: Calls and texts for telemarketing purposes to any mobile/wireless phone now require prior express written consent; other calls still require prior express consent.
Prior express written consent
Calls to residential lines Previously: ATDS: No per se ban, but sales calls subject to DNC rules; robocalls (artificial/prerecorded voice messages) required prior express consent. NEW: Robocalls now require prior express written consent
LIMITED EXCEPTIONS ● Emergency ● Non-commercial purpose ● Commercial purpose but does not advertise or constitute telemarketing ● On behalf of tax-exempt nonprofit organization ● “Health care” messages by a “covered entity” or its “business associate” [defined in HIPAA Privacy Rule, 45 CFR 160.103].
Prior express written consent (Con’t))
Established business relationship (EBR)
Residential calls using
artificial or prerecorded voice could rely on “established business
relationship” (subject to exceptions).
Essentially, EBR is a proxy for consumer consent.
PREVIOUSLY
EBR eliminated; no longer valid.
Unless another exception applies, only prior express written consent will suffice.
NEW
Old: Telemarketing robocalls must (1) identify the calling entity at the beginning of the call, and (2) provide an opt-out telephone number during the call. Must also maintain internal Do-Not-Call (DNC) list.
• Interactive opt-out mechanism required within 2 seconds after self-identification
• Ability to opt-out throughout the call • If consumer opts out, number must be automatically added to
internal DNC list and call must be disconnected immediately. [in person]
• Message must include a toll-free number allowing the consumer to call back and connect directly to an auto-dialed opt-out mechanism. [voice mail]
Opt-out requirements
New
• Abandoned call = not connected to a live sales rep within 2 seconds of the consumer’s completed greeting
• “Abandoned” calls prohibited • Old opt- requirements just discussed
Safe harbor: Can’t abandon more than 3% of calls answered by consumers in any 30-day period.
• New opt-out requirements just discussed
Abandoned call requirements
current
Safe harbor: Measured for the call campaign or 30 days (shorter duration) • Call campaign < 30 days - can’t average the abandoned call rate with
other campaigns • Call campaign > 30 days - average every 30 days
NEW
Time of day rule (no calls before 8am, after 9pm)
DNC list – requests now honored indefinitely
Internal DNC list required
Other requirements
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Brief summary
Robocalls: Prior express written consent required for telemarketing robocalls to both wireless telephones and residential numbers. Prior express consent required for non-telemarketing robocalls to wireless numbers. Limited exemptions.
Tighter opt-out requirements and rules for abandoned calls!
Auto-dialed calls: Prior express written consent required for auto-dialed telemarketing calls and text messages to wireless telephones. Prior express consent required for all other auto-dialed calls to wireless numbers. Limited exceptions.
Contact center practices that become a “no no”
What’s acceptable
Penalties for non-compliance
What does this mean to you?
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Unsolicited Robocalling
Voice Broadcast Messages
Automated Dialers
Telemarketing
SMS text messages (unless an emergency)
Unsolicited Sales or Marketing Calls
Contact center “no no’s”
Same rules apply for businesses now! NOTE
Private Lawsuit Fines Private lawsuits- $500 per call/message violation
Treble damages for “willful and knowing” violation
Injunctive relief Other Types of Fines
$500- $1,500 per violated call/message
Name removal request
Negligence
BEWARE OF THE PENALTIES!
REMEMBER: Consent can always be withdrawn!
PENALTY CASE STUDIES
Government enforcement actions
Private lawsuits, including consumer class actions, under TCPA
CASE STUDY: Mortgage Investors Corporation case - $7.5 million civil penalty, June 2013. Allegations: DNC violations, failure to maintain internal DNC list, sales misrepresentations. [To date, FTC has collected $41 million+ in penalties and $33 million in redress for telemarketing violations. See: www.ftc.gov.]
CASE STUDY: Papa John’s case - $16.5 million settlement, May 2013. Allegation: 500,000 unwanted text messages.
Critical Items
• Written policies and procedures • Employee training • Documentation of procedures and precautions
à if challenged, you will need to be able to prove compliance
• Written and recorded procedures and training will defeat a finding of “willful and knowing” violations
Stay Free from harm’s way
What’s Acceptable • E-SIGN Act- digital/electronic signatures • Full disclosure on file • Tax-exempt, non-profit organization or
political call to landline
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Precautions Recordings
Dated agreement, clearly printed name
Name, number, business, reason for calling
Purchased leads, lead generating tools- compliant?
Disclosure on website
Compliant scripting
Opt-out
DNC compliance
Don’t forget about it
Stay Free from harm’s way
What isn’t acceptable anymore? Simultaneously calling two or more numbers and not having the proper number of agents available to answer the calls if both outbound calls answer.
Abandoning more than 3% of calls
Having a long silent period before it connects to an agent causing the caller to hang up (considered an abandoned call)
Can I still use it? Yes- it’s about how you use it
How you used to use it MAY be illegal- 3% abandonment rate Must have agents available to take all calls that are answered in 2 seconds, unanswered calls cannot be disconnected for 15 seconds or greater.
what about predictive dialers?
Record keeping do’s and don’ts
DO’S
• Key-press consent • Lawful records • CRM record keeping • Audits • Silent listening to your
agents • Performance
management- compliance
• Even if you’re compliant and don’t have records you’re still at as much risk as not being compliant
DON’TS
• Can’t record every
outbound call • 2 party authorization-
must have each agent say “this call will be recorded…”
• Don’t make assumptions! Just because you don’t share the recording doesn’t mean you are ok.
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Tricks & Tools • Lead nurturing with power
dialing • Skills-based call queues to
route calls • What do to with purchased
leads • Valid ways to gain consent
so you can call • How to train your sales and
service staff to keep you compliant
Ways to stay efficient
Thank you! www.corvisacloud.com | [email protected] | 877.487.9256