By Rich Hamilton, Director of Implementation and Team Improvement Leader
Are you confused by the TCPA? This past July, the Federal Communications Commission (FCC) clarified the Telephone Consumer Protection Act (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. Telemarketing regulations are very complex. And with this complexity, there is bound to be some confusion. Here are 7 common TCPA misconceptions that I’ve observed.
#1 – B2B calls do not need to comply with the TCPA
Wrong. 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% of live answered calls per campaign per 30-day period. A call is considered abandoned if a live agent does is not connected within 2 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 call 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 that information calls and surveys are exempt from the TCPA. This is not right when it comes to placing calls to wireless phone numbers.
#3 – Numbers that are ported from wireline to wireless are not considered wireless numbers
Wrong. Telemarketers must subscribe to iconective to proactively identify numbers that have ported from landline to wireless. Lucky for the industry, we have a 15 day grace period to identify the ported numbers and update our calling lists.
#4 – If a number is reassigned from one wireless subscriber to another, you can claim “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 very limited safe harbor was provided which only protects the first call to a re-assigned number, no matter what the outcome of the call is. Also note that those that receive phone calls from telemarketers have no duty to tell the telemarketer that the phone numbers has been reassigned. Huh. Are you getting the feeling that the FCC doesn’t like us?
#5 – If a company uses a 3rd party to make telemarketing calls, the company does not 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 audits of call detail records, listening to call recordings, and onsite 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 message must have an automated interactive voice and/or 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 and/or outsourced telemarketing company fully compliant with the TCPA? Call us today to learn more about our TCPA call center consulting services and how we can help you to reduce your risk and become more TCPA compliant.