Compliance may seem complex, but it doesn't have to be. By following a few simple rules, like prioritizing live-agent calls and ensuring your telemarketing-contacts lists comply with the Do Not Call Registry, you can steer clear of common legal issues and expensive fines. In this article, we'll delve into the core components of the Telephone Consumer Protection Act (TCPA) that affect call centers in the United States. Plus, we cover a few helpful insights to help you navigate two critical aspects of TCPA compliance effectively.
For a deeper understanding, please read the first article in our TCPA Series: The Two Pillars of TCPA Compliance: Core Rules
TCPA Overview: Section 227(b) and Section 227(c)
The two main pillars of the Telephone Consumer Protection Act (TCPA) that impact call centers in the United States are:
- Section 227(b) deals with autodialed, prerecorded, and artificial voice calls to cell phones and residential lines. If you’re going to make any of those calls, you need “prior express consent” of the called party. (And consent can get very specific if you’re using that type of technology to make telemarketing calls!)
- Section 227(c) deals with “telephone solicitations” to “residential telephone subscribers” who have placed their numbers on the National Do Not Call Registry.
TCPA Section 227(b) – Pre-Recorded or Artificial Voice
If you’re not making calls with a pre-recorded or artificial voice, you’re well on your way in your compliance journey because you’ve taken 227(b) issues off the table. This is especially important because 227(b) is the darling of TCPA plaintiff’s attorneys.
If the plaintiffs’ lawyers can find (or even think or hope they have found) a campaign that conflicts with Section 227(b), they’ll typically file a putative class action against the caller. They think they have a clearer path to getting the court to certify that class action because of the typically uniform nature of prerecorded or artificial-voice calls.
Avoiding pre-recorded and artificial voice calls also helps your brand and compliance journey, because your live-agent calls are far less likely to be the subject of complaints, and your agents can get real-time feedback from your contacts.
TCPA Section 227(c) – Do-Not-Call Registry
This subsection of the TCPA (227c), among other things, requires you to maintain an internal do-not-call list, and prevents you from making sales calls to people who have registered their phone numbers on the National DNC, unless you have that person’s consent, or an established business relationship with them. Compared to other areas, 227(c) is a much more nuanced area of the law. It is therefore far harder for TCPA plaintiffs’ attorneys to attack. There are several conditions that must apply before they can successfully prove a 227(c) claim.
- Are your calls even a “telephone solicitation”? (Hint: there are various exceptions, and consent is only one of them.)
- Are the calls to a “residential telephone subscriber”?
- Are you calling someone who added their phone number to the National DNC?
- Have you made more than one call to this person within a 12-month period?
Those, among others, are all factual considerations that go into evaluating a 227(c) claim under the TCPA. And the more individualized the analysis of those issues gets, the harder it is for TCPA plaintiffs to convince courts to certify a class. That is why they love 227(b) and shy away from 227(c) classes when they can.
In short, sticking with live-agent calls can really help you kick-start your compliance journey by helping you spend more time with your agents and contacts, and less time with TCPA lawyers. But, as always, we recommend having a good TCPA attorney for your compliance journey. An ounce of prevention, as they say, is worth a pound of cure.
The term telephone solicitation means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message:
- (i) To any person with that person's prior express invitation or permission;
- (ii) To any person with whom the caller has an established business relationship; or
- (iii) By or on behalf of a tax-exempt nonprofit organization.
(Source: 47 CFR 64.1200(f)(15))
Residential Telephone Subscriber
The term residential telephone subscriber lacks a clear statutory definition, leading to ongoing legal disputes. Generally, it undeniably pertains to individuals' home landlines, aligning with Congress's stated intention, as evidenced by the distinct treatment of "cellular telephones" in Section 227(b) of the TCPA, indicating Congress's capability to differentiate between phone types.
However, in 2003, the FCC introduced a controversial 'presumption' suggesting that "residential telephones" could encompass cellular telephone users, at least for voice calls. This interpretation remains debated in the courts, with some adhering to the FCC's ruling, while others critically question it, considering the contrasting language used in adjacent sections of the TCPA, never mind the FCC’s duty to conclude its do-not-call rulemaking by 1992.
This is not legal advice. You should consult a qualified attorney for your compliance needs.
About the Author
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
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