The business sector recently scored a key victory with the FCC (News - Alert) regarding being allowed to send a single confirmation text message to consumers who opt out of getting additional messages.
Now, there is speculation that additional decisions also related to the Telephone Consumer Protection Act (TCPA) could be made by the FCC. In fact, the FCC is seeking public comments on predictive dialers and autodialers – and how they are governed by the TCPA, according to JD Supra.
In the most recent case, the FCC basically ruled in favor of SoundBite Communications (News - Alert) supporting the position that organizations can send a single confirmation text message in response to a request by consumers to not get additional messages, according to TMCnet.
“The ruling clarifies that sending a single opt-out confirmation after a consumer opts out of receiving text messages from a company does not violate the Telephone Consumer Protection Act (TCPA),” SoundBite said in a statement carried by TMCnet in response to the ruling. “Sound public policy was clearly a guiding principle in removing the ambiguity around sending consumers confirmatory opt-out text messages.”
Both consumers and businesses will benefit because consumers are kept informed and companies “have complete clarity on how to handle consumer opt-outs,” the company claims.
SoundBite’s request before the FCC was supported by CTIA-The Wireless Association (CTIA), the U.S. Chamber of Commerce, the Mobile Marketing Association (News - Alert) (MMA), the Council of Better Business Bureaus and other business groups.
The ruling also will likely stop related class action lawsuits, such as one where Barclays Banks paid about $8 million.
The statement the bank had sent was, "You will no longer receive text alerts from Barclaycard to this number. If you have questions, call 866-408- 4070," according to The Legal Times.
When it comes to future decisions at the FCC, one big challenge is the increasingly broader definition of an automatic telephone dialing system (autodialer). The definition used by the FCC appears to go “beyond the original intent and letter of” the TCPA, according to the Marketing Research Association (MRA).
The MRA reported in a recent blog post that Communications Innovators (CI) has asked the FCC to clarify, under the TCPA and under Congressional intent, that predictive dialers are not used for telemarketing and cannot “generate and dial random or sequential numbers, are not ‘automatic telephone dialing systems’ (‘autodialers’) under the TCPA and the Commission’s TCPA rules," the blog post said.
The MRA claims that predictive dialers used for non-telemarketing purposes are not autodialers under the TCPA, according to the organization’s statement. The MRA also wants the FCC to exclude survey, opinion and marketing research calls made to cell phones from the TCPA requirements.
"The TCPA’s primary purpose was and remains protecting individuals from telemarketing activity and ensuring the smooth transmission of emergency communications," the CI said in a document submitted to the FCC. "To the extent that Congress was concerned about some non-telemarketing calls – those made through autodialers with the capacity to generate and dial random or sequential numbers – Congress was clearly focused on extensive wide-reaching ‘scattershot’ calls, not specific and targeted calls."
Also, in 2003, the FCC ruling on the subject led to some confusion. “The Commission’s (FCC’s) 2003 interpretations... created an unnecessarily expansive and confusing regulatory landscape for conducting survey, opinion and marketing research in the United States,” the MRA told the FCC in a prior statement. “In order to protect our members, MRA has had to recommend consistently that the research profession avoid essentially any automation in research calls to cell phones and rely instead on insufficient and costly manually dialing by hand."
But dialing technology has changed in the last decade, according to the MRA. Predictive dialers generally do not have “the capacity… to store or produce numbers to be called, using a random or sequential number generator."
Like CI, MRA requested that the FCC "focus on the meaning of the term ‘capacity’ in the definition of an autodialer and declare that capacity relates to the ability to generate and dial random or sequential numbers ‘without additional modifications to the equipment’ – at least for non-telemarketing calls."
In addition, on Feb. 15, the FCC added new rules for predictive dialers under the TCPA, according to a report by TMCnet. These include the FCC wanting to see prior signed consent for auto- or predictive-dialed live agent calls to cell phones, as well as an automated opt-out for “abandoned” live-agent auto/predictive-dialed telemarketing calls to residential lines and cell phones. The FTC (News - Alert) had allowed banks and other financial companies to place prerecorded telemarketing calls, but now there are stricter FCC rules in place. The new FCC rules do not affect non-telemarketing calls, such as those for political messaging, informational and customer care calls, and debt collection calls. The new rules go into effect in March or April 2013.
The new FCC rules will impact the predictive dialer industry, with these systems getting blocked from completing relevant calls without “prior express consent” from the intended party, TMCnet said. Companies that use auto or predictive dialers to place live-agent sales calls and let their equipment to abandon some calls (up to three percent) will have to change so the recorded message includes an automated opt-out.
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Edited by Rachel Ramsey