Calling Out the Latest TCPA Regulations



The rise of households with cell phones as their primary telephone, coupled with the increase in mobile marketing over the past few years, have brought about sweeping changes within the call center industry. But unclear language in the latest Telephone Consumer Protection Act (TCPA) regulations and the stiff penalties facing companies found to be noncompliant mean that now is an ideal time to brush up on the rules.

The FCC's 2008 TCPA rule changes finally came into full effect in late 2013 and have led to confusion and uncertainty in the industry. Call centers and legal teams continue to struggle to make sense of the new regulations in light of potentially contradicting statutes and nuanced exemptions regarding call consent, system compliance, and the cost of regulatory infractions.

In the past year alone, private consumers filed 70 percent more TCPA-related lawsuits against call centers and multichannel contact centers than they did in 2012, constituting a growing threat and signaling a developing trend against the call center industry.

It's essential that call centers remain absolutely compliant with the changing TCPA regulations, regardless of ambiguous rules. The primary function of the new changes is to limit telemarketing calls to cell numbers and redefine what call center systems and methods of contact are considered legal to help minimize unwanted calls.

The new TCPA rules generally made the existing industry regulations stricter and have, both explicitly and implicitly, increased the allowable punishment for violations. In order to mitigate the risk of lawsuits or a federal investigation, call centers should:

  • act quickly to deal with new wireless consent rules;
  • scrub cell phones or manually dial those numbers;
  • use vendors that are properly equipped to perform wireless identification and scrubbing;
  • promptly resolve consumer complaints and respond to government inquiries;
  • seek proper consent to call at every point of contact with customers; and
  • carefully analyze the dialing software being used to ensure that it does not fall under automatic telephone dialing systems classification.

These steps should keep organizations pre-emptively shielded from most fines related to do-not-call (DNC) and TCPA offenses, provided they are isolated events.

In addition, many law firms and legal consultants in the industry believe that a grace period for isolated mistakes still exists within the language of the new TCPA regulations, as long as call centers take the appropriate measures to ensure compliance by:

  • establishing written procedures to comply with the national DNC list;
  • training personnel in lawful procedures;
  • monitoring and enforcing compliance with both internal and external regulations;
  • maintaining an entity-specific DNC list; and
  • scrubbing caller lists every two weeks.

While regulations regarding cell phones and prior expressed consent constitute a majority of TCPA's scope and regulatory intentions, there are additional changes to industry regulations in the latest rules rollout. The rules are much less strict about calling landlines and allowing use of predictive dialing without prior consent, provided that prerecorded messages aren't being used. Be careful if calling across state lines, however, as some states' regulations differ significantly from the federal TCPA.

As these new rules are being enforced, there's no official, complete interpretation of the guidelines. However, a few exceptions have continually been upheld, particularly in the case of mobile phones, where verbal consent—not written—can suffice for nontelemarketing calls with prerecorded messages. Additionally, HIPAA-regulated healthcare messages are likely to be treated as a separate category.

The TCPA guidelines present challenges to those in the call center industry, but becoming more familiar with rules changes can help organizations sidestep any potential legal ramifications. By creating greater consumer protections against both telemarketing and debt-collecting call centers, the new TCPA rules usher in a much more litigious environment that requires a fundamental shift among basic business practices for call centers and contact centers alike. With careful adaptation and the proper systems and procedures in place, call centers can remain profitable and continue thriving among these sometimes challenging industry shifts and a new regulatory environment.