2015 TCPA ruling: What’s changed

On June 18, the Federal Communications Commission (FCC) approved a ruling on over twenty petitions and other items seeking clarification of the Telephone Consumer Protection Act (TCPA) or relief thereunder. The ruling was published on July 10, 2015. After poring through the analysis and rationale and talking with others who closely watch this space, I have collected views on potential important takeaways from the ruling. What follows is a collection of impressions and options. I’m not an attorney, and this summary is not intended (and should not be construed) as a legal opinion or legal advice.
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The Federal Communications Commission responded to almost two dozen petitions by a number of companies and trade associations that sought relief or clarification regarding the requirements of the TCPA. Among other things, the ruling discusses what equipment falls within the definition of “autodialer,” addresses regulations regarding certain calls to reassigned wireless numbers, provides consumers with a right to revoke consent by any “reasonable” means, and establishes new exceptions for certain financial and healthcare related calls.

While waiting for the ruling to appear, I considered what the yet-to-be-revealed details would mean for customer service organizations. For those that rely on various forms of automated messaging to proactively engage with customers, this ruling could have an impact.

Research has shown that a majority of Americans want and expect the companies they do business with to reach out to them proactively when there is something urgent that requires attention, such as possible fraud on their credit or debit card or a flight delay or cancellation. In fact, 91 percent of consumers indicated they wanted proactive messages and 53 percent said such communications could have helped prevent an issue in the past.

This strongly suggests that the TCPA, when voted into law in 1991, was passed to protect consumers from illegal calls and texts without interfering with “expected or desired communications between businesses and their customers.” That said, technology has changed in the intervening years such that, according to Pew Research Center, 44% of cell owners sleep with their phone next to their bed because they want to make sure they didn’t miss any calls, text messages, or other updates during the night.

I’m not an attorney and I urge you to consult with your legal counsel to determine what the new rulings mean for your customer outreach. However, like many in the call center space, I’ve now pored over the ruling’s analysis and rationale. Here are my own views:

Much of the ruling is dedicated to clarifying existing regulations. Prior express consent has been applied for the delivery of certain interactive voice messages or system-generated text messages to mobile phones. Honoring customer’s requests to no longer get these communications was already important

The ruling also allows certain urgent messages to be sent without consent to warn customers, for example, of potential fraud on their bank accounts or situations that could impact their health.

Under certain circumstances, companies have a safe harbor to make an automated call or text when, without the company’s knowledge, its customer’s wireless phone number has been reassigned to someone else.

However, it’s important to understand the details (and why talking to counsel is strongly encouraged):

The ruling suggests that consumers can revoke consent using “any reasonable method.”

To qualify for the consent exemption for urgent financial or healthcare communications, texts and voice calls to a mobile phone should be free to the customer and not count against their mobile plans limits. While there are some mobile carriers that support “free to end user” text messaging today, none do the same for voice calls.

Finally, as to the exemption for one call to a reassigned number, the ruling suggests the called party does not have to inform the caller that it has reached a wrong number.

 

Tune in for Part 2 of this post where I’ll share a few thoughts and ideas on how companies can stay in touch with customers while remaining compliant.

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Brian Moore

About Brian Moore

Brian Moore, senior principal, industry solutions of Nuance’s Enterprise division, brings more than 30 years of experience in financial services, mortgage and collections operations and technology to the company. He is also our resident compliance expert, advising companies on the TCPA, FDCPA, TSR and other regulations impacting customer engagement.