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Five9 Discusses TCPA

By Paula Bernier
Executive Editor, TMC

The Telephone Consumer Protection Act has long been a thorn in the side of businesses that do outbound marketing. And recently things on the TCPA have become even more prickly, notes Mayur Anadkat, director of product marketing at Five9 (News - Alert), which spoke with TMCnet a couple days ago at Call Center Week.

The Federal Communications Commission again raised the hackles of marketers and the outbound contact center space by announcing it would be revisiting TCPA in a public meeting. That meeting took place yesterday, just after Anadkat met with TMCnet in Las Vegas. But he noted that businesses using outbound calling, and their suppliers, were concerned because TCPA is already an expensive proposition for them and that the announcement of the June 18 meeting was viewed as a sign that the FCC would continue to tighten the screws on this front.

When FCC Chairman Tom Wheeler (News - Alert) announced the meeting was scheduled, said Anadkat, “the discussion made it seem like [TCPA] would be even more constrictive and require businesses to do more.” The Five9 marketing director added: “A lot of businesses, big companies like telcos, cablecos, anyone that does a decent amount of outbound calling, there’s a fear they will be pulled out of [using outbound calling] altogether. And that’s a big business shift; it’s a lot of jobs.”

Anadkat continued: “It seems to be only getting more and more constrictive. There’s nothing going in the other direction.”

Here’s what happened at the FCC’s (News - Alert) June 18 meeting.

The commission adopted a proposal to protect consumers against unwanted robocalls and spam texts. It said the move was in response to a flood of consumer complaints about such communications. Last year alone, the FCC received 215,000 complaints of this sort. The FCC said that its June 18 actions also aimed to respond to the two dozen petitions it has received asking for clarity on how it interprets the TCPA.

Here are some bullet points the FCC provided summarizing its actions on this front:

• Green Light for ‘Do Not Disturb’ Technology – Service providers can offer robocall-blocking technologies to consumers and implement market-based solutions that consumers can use to stop unwanted robocalls.
• Empowering Consumers to Say ‘Stop’ – Consumers have the right to revoke their consent to receive robocalls and robotexts in any reasonable way at any time.
• Reassigned Numbers Aren’t Loopholes – If a phone number has been reassigned, companies must stop calling the number after one call.
• Third-Party Consent – A consumer whose name is in the contacts list of an acquaintance’s phone does not consent to receive robocalls from third-party applications downloaded by the acquaintance.

Additional highlights for wireless consumers include:

• Affirming the Law’s Definition of Autodialer – “Autodialer” is defined in the Act as any technology with the capacity to dial random or sequential numbers. This definition ensures that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.
• Text Messages as Calls – The Commission reaffirmed that consumers are entitled to the same consent-based protections for texts as they are for voice calls to wireless numbers.
• Internet-to-Phone (News - Alert) Text Messages – Equipment used to send Internet-to-phone text messages is an autodialer, so the caller must have consumer consent before calling.
• Very Limited and Specific Exemptions for Urgent Circumstances – Free calls or texts to alert consumers to possible fraud on their bank accounts or remind them of important medication refills, among other financial alerts or healthcare messages, are allowed without prior consent, but other types of financial or healthcare calls, such as marketing or debt collection calls, are not allowed under these limited and very specific exemptions.  Also, consumers have the right to opt out from these permitted calls and texts at any time. 

Businesses in recent years have been highly critical of TCPA rules and how they are interpreted, and some have argued that ambiguity on that front has opened the door for lawyers and their clients to take advantage of that and win large settlements.

Under TCPA rules, if a company calls or texts the wrong party because the telephone number has been reassigned without the knowledge of the caller, for example, that can result in damages of $500 to $1,500 per unsolicited call, text, or fax. Damages can add up quickly at that rate, and litigation related to the TCPA has soared in recent years.

For example, a pizza chain in 2013 paid more than $16 million in damages to settle a nationwide class action lawsuit alleging it unlawfully advertised its pizzas by sending consumers unwanted SMS text messages. A vehicle maintenance brand recently paid $47 million for similar violations. And a major financial firm and three collections agencies paid $75.5 million restitution for TCPA violations.