TCPA LAWS COMING IN OCTOBER

HERE COMES THE NEW LAWS:

By Cory A Grambart

few months from now, new cell phone consent rules will take effect.  These new cell phone consent laws will  change the outbound telemarketing industry.  Beginning October 16, 2013, telemarketers, debt collectors, banks, anyone using the auto dialing equipment  will need to scrub out wireless numbers before initiating outbound calls.  Exceptions are very limited.  The new FCC rules for calling cell phones are contained in the recently amended Telephone Consume Protection Act (TCPA).

The amended TCPA makes it illegal to initiate a telemarketing call using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice (robocall) to a cell phone without the prior express written consent of the person called.  The FCC also explained what they mean by “prior express written consent.”  Much of the so called “opt-in” data floating around in this industry will not meet the new rigorous cell consent standards.

Under the new cell consent rules, the telemarketer wishing to call a cell phone will first need to obtain a signed written agreement  or e signed agreement expressly authorizing a specific entity to deliver auto-dialed calls or prerecorded messages for telemarketing purposes to a designated telephone number.  The consent language must also inform the consumer that providing consent may not be a condition of any purchase.  This type of consent is difficult or impossible for many telemarketers to obtain, thus creating the need for wireless scrubbing.

Under the new wireless rules, a safe harbor exists for companies who regularly scrub against a wireless number list every fifteen days.  Telemarketers must scrub against both a list of cell-phone prefixes (wireless block file) as well as a list of land lines recently ported to cell phones (NeuStar ported list).  If the telemarketer accidentally calls a cell phone without consent, they may qualify for safe harbor so long as they had scrubbed against the wireless number list within the previous fifteen days.

What about B2B?  The new TCPA cell phone consent laws are not consumer-specific and therefore protect business cell phones along with consumer cell phones.  For this reason, business-to-business telemarketers will need to engage in the same wireless scrubbing efforts in order to be TCPA compliant.

Why comply?  Violations of the TCPA are punishable by fines of up to $16,000 per individual call made in violation.  The TCPA also allows the consumer to bring a private civil action for $500 per violation—or three times that amount if the violation was willful.  Telemarketers should act quickly to engage a wireless scrubbing vendor and not fall off the October 16 the new law starts.

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