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The Complete Guide to TCPA Compliance

TCPA Call Center Compliance with TCN


TCN’s platform doesn’t just safeguard call center compliance against the TCPA, designed to help automate compliance and minimize risk as regulations and rulings come and go. Features like Natural Language Compliance and Manually Approved Calling can maintain control when, where, how, and to whom all communications happen.


What is the TCPA?

  • TCPA refers to the Telephone Consumer Protection Act 47 U.S.C. § 227
  • TCPA aims to eliminate repetitive, irrelevant, or excessively intrusive calling practices.
  • The TCPA extends to all facets of outbound telephone contact, including but not limited to autodialed and manual phone calls, faxes, voice messages (both organic and automated), text messages and automatic dialing systems.

While consumers may have been filing fewer lawsuits, they were complaining more in 2018 than they did in 2017. The number of complaints filed with the Consumer Financial Protection Bureau was 6% higher in 2018 than 2017, and the number of complaints registered by the Better Business Bureau was 11% higher last year than the number from 2017.

SOURCE: www.accountsrecovery.net

What Are the Main TCPA Requirements

  • Do not call anyone listed in the National Do Not Call Registry.
  • Residences may not be called before 8 a.m. or after 9 p.m. in that residence time zone.
  • Do not deliver artificial voice calls or recordings to residences without prior express written consent.
  • Do not use autodialers, recordings, or simulated voices to make calls to mobile phones or other recipients where the receiver pays for the call itself.
  • It is prohibited to make calls using an automatic telephone dialing system (ATDS) to:
    • Any emergency telephone line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency,
    • To the telephone line of any guest room or patient room of a hospital,
    • health care facility, elderly home, or similar establishment; or
    • To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call

Get the Manager's Free Guide to Call Center Regulations and get ahead of the curve on your call campaigns.

  • It is prohibited to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B) of Telephone Consumer Protection Act 47 U.S.C. § 227;
  • It is prohibited to:
    • (C) to use any telephone facsimile machine, computer, or other devices to send, to a telephone facsimile machine, an unsolicited advertisement to a telephone facsimile machine, unless the unsolicited advertisement is from a sender with
      an established business relationship with the recipient or the sender obtained the number of the telephone facsimile machine through the voluntary communication of such number, within the context of such established business relationship,
      from the recipient of the unsolicited advertisement, or through a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution,
      • Except in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number
        of the recipient before such date of enactment.

To Whom Does the TCPA Apply?

  • Everyone! It applies to: “any person within the United States, or any person outside the United States if the recipient is within the United States.”

Exemptions from the TCPA

While tax-exempt nonprofit organizations are exempted from the TCPA, calls may not be made to numbers on the National Do Not Call Registry.

  • Start by becoming familiar with basic TCPA compliance best practices.
  • Nonprofits must check the Do Not Call registry every 31 days and drop them from call lists.
  • “ ’Tax-exempt’ signifies the organization has been recognized as exempt from federal income taxes. This would include entities that are exempt under Section 501(c)(3), Section 501(c)(4), and 501(c)(6), among others.” Nonprofitfederation.org
  • This exemption status includes telemarketers acting on behalf of a tax-exempt nonprofit.
  • Any non-charitable solicitation is immediately subject to TCPA regulation – in other words, asking for donations is the one purpose that is exempted.
  • Prior express written consent is mandatory before any robocalls are made.
  • For more information, consult the Nonprofit Federation’s fact sheet.
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Curious just how much TCPA violations might cost? Check out the infographic on the Costliest TCPA Mistakes in Call Center Compliance now.

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TPCA and Prior Express Written Consent (PEWC)

How do call centers reduce the risk of contacting cell phones or other devices in violation of the TCPA? Take a look at these PEWC and TCPA tips.

Prior Express (Preferably Written) Consent Required:

  • Calls made from an automatic telephone dialing systems (ATDS) to a residential phone number. Emergency and healthcare facilities are exempted.
  • ATDS calls may not be placed to a cell or mobile phone. Use a manual dial system that requires human intervention in order to place each individual call.

Consent not Required:

  • Non-telemarketing calls that don’t use a prerecorded message and are dialed manually, regardless of destination phone number. Calls must not be placed to numbers listed to Do-not-call Registry.
  • TCPA does not require PEWC for non-commercial calls made using autodialed or prerecorded message calls to business or residential landlines.
  • Prerecorded or autodialed messages that are made for commercial purposes may be placed but may not include or present unsolicited advertisements or in any way constitute a telephone solicitation.

Demonstrating Express Consent to be Called for Business Purposes:

  • Consent is often assumed when the called party gave their number to the caller.
  • Consent is often assumed when the called party provided a contact number to a creditor, since it is reasonable that a creditor will want to make contact regarding the debt.
  • Skip-trace collection of a contact number or collecting a debtor’s number from a 3rd party is not the same as collecting express consent, written or otherwise.
  • The FCC and TCN both recommend including language that explicitly includes collection of a cell or mobile number with the statement that the number will be used to deliver autodialed and prerecorded messages from the creditor and it’s 3rd-party collection services.

Best Practices Regarding Consent:

  • Listen to the TCPA Defense Webinar Audio Conference Download.
  • Stay up to date on what constitutes an ATDS – monitor the legal outcomes of ATDS cases.
  • Keep your legal counsel’s advice at all times. They are paid to monitor these definitions and legal outcomes. Industry and trade publications are a gold mine of discussion and observation – they might just keep you ahead of the shifting landscape.
  • CAPTURE CONSENT. Include consent to be contacted in legal agreements, purchase receipts, etc., and be sure to also document revocation of consent diligently. If they sent in a letter revoking consent and you failed to track it, the outcome could be bleak. Doing all of the above helps minimize the liability for a class action.
  • Text messages are considered calls.
  • There are legal cases out there that consider direct-drop voicemail the same as a call.
  • Adopting new telephone technology should come from a strategic place, not one of TCPA fear. Connecting with a younger
    demographic to keep up business should be the driver – growing the business is a much more powerful reason to adapt than fear of liability.

Read more about our Defense Against TCPA Litigation in our blog.


TCPA Regulation and Call Regulation History

Businesses began to successfully capitalize on large-scale outbound calling methods in the 1980s. The explosion in contact centers and outbound calls powered legislation created to define industry boundaries and consumer rights.

  • The United States Congress enacted the Telephone Consumer Protection Act (TCPA) in 1991 to regulate the calls citizens received and reduce unwanted calls.
  • June 27, 2003, the FTC created the National Do Not Call Registry to ensure compliance with the Do-Not-Call Implementation Act of 2003.
  • Major revisions to the TCPA gave it broad powers, in 2015, through new fines and new, sweeping definitions of regulated equipment.
  • Affecting collections businesses, the Fair Debt Collection Practices Act was implemented in 2010.

TCPA Rules for Contacting Customers

  • Do not call residences before 8 a.m. or after 9 p.m., according to the recipient’s time zone.
  • Companies must maintain an internal “do-not-call” list, and anyone upon that registry may not be called. Requests to not be called must be honored for five years.
  • Solicitation calls may not be made to anyone on the National Do Not Call Registry.
  • Callers must provide their name, the name of the business they represent and a telephone number or address where the recipient can contact that business.
  • Solicitation calls may not use an artificial voice or recording.
  • Automated Telephone Dialing Systems (ATDS) may not dial up emergency phone numbers, hospital emergency numbers, a physician’s office, health care rooms, a cell phone, or any instance where the recipient is charged for the call.
  • Some calls are not restricted by TCPA. Generally, these are not-for-profit type calls. See the full legal text.

Text Messages and the TCPA

Staying TCPA compliant means having a great setup on your text delivery campaigns.

Watch Video Now: Check out TCPA tips and best practices for your call center.

Telemarketing Calls or Text Messages:

  • Do not place a marketing call or text without prior express written consent (PEWC) from the recipient first.
  • Stay up-to-date on best practices for obtaining legally resilient consent (PEWC).
  • Refer to the section or rules for contacting customers when making a call or text to a consenting recipient. (Provide name and name of the business, respect time zones and calling windows, etc.)
  • Don’t mix sales messaging into calls that are exempt from TCPA (political calls, charity calls, etc). Adding sale content to such a call (or text) puts it firmly under TCPA’s scope.

TCPA and Cell Phones or Smartphones:

  • Do not send texts or make telemarketing calls to cell or smartphones (mobile phones) without prior express written consent.
  • Calls to collect a debt are not considered telemarketing calls – be sure to have PEWC if calling a mobile phone of any kind.
  • Prior express written consent done well means making the calls you need to make to the customers and clients you need with less worry of $500 or $1000 fines.

TCPA and Prerecorded Messages:

  • Do not send prerecorded messages to cell or smartphones (mobile phones) without prior express written consent. Include consent for telemarketing, collection and other business purposes in your written consent language.
  • Prior express written consent done well means making the calls you need to make to the customers and clients you need with less worry of $500 or $1000 fines.
  • If the call contains no solicitation for money, goods or services, a call to a residential telephone is still prohibited if placed by way of ATDS dialer.

May/June 2019: Voice Carrier Automatic Call Blocking and Text Blocking Permitted

2019 saw the issuance of a Declaratory Ruling in support of call blocking and text blocking that originates at the carrier.

That means, depending on certain call analytics made by the carrier/provider, contact centers and call centers will all need to be doubly sure they’ve got strict control over their outbound calls – or their calls will never reach the customer. Here’s a preview of the call blocking update mentioned in the FCC Fact Sheet:

…voice service providers may, as the default, block unwanted calls based on reasonable call analytics, as long as their customers are informed and have the opportunity to opt-out of the blocking. This action empowers providers to protect their customers from unwanted robocalls before those calls even reach the customers’ phones. While many phone companies now offer their customers call blocking tools on an opt-in basis, the Declaratory Ruling clarifies that they can provide them as the default, thus allowing them to protect more consumers from unwanted robocalls and making it more cost-effective to implement call-blocking programs.

TCN also found some key language around the call blocking measure. Take a look at what will likely be considered “reasonable analytics” which can result in your calls/texts being blocked [text below reformatted from source]:

  • Large bursts of calls in a short timeframe;
  • Low average call duration;
  • Low call completion ratios;
  • Invalid numbers placing a large volume of calls;
  • Common Caller ID Name (CNAM) values across voice service providers;
  • A large volume of complaints related to a suspect line;
  • Sequential dialing patterns;
  • Neighbor spoofing patterns;
  • Patterns that indicate TCPA or other contract violations;
  • Correlation of network data with data from regulators, consumers, and other carriers; and
  • Comparison of dialed numbers to the National Do Not Call Registry

The list goes on, however. More most-frequent scam calls/texts will likely be caught and stopped if they:

engaged in war dialing, unlawful foreign-based spoofing, or one-ring scams and might be designed to incorporate information about the originating provider, such as whether it has been a consistent source of unwanted robocalls and whether it

appropriately signs calls under the SHAKEN/STIR framework. Although we suggest these as examples of potentially effective opt-out call-blocking programs, this list is not exhaustive.

TCN Partners with Numeracle to Help Clients Avoid Improper Text and Call Blocking

TCN has immediately worked to ensure contact center and call center clients – all clients – can provide a way to verify their business’s legitimate calls, in light of this development.

TCN customers will receive direct access to Numeracle’s Number Registration and Trusted Entity™ Certification solutions, enabling users to register and certify phone numbers with call labeling analytics companies utilized by the top U.S. wireless carriers and third-party robocall identification apps.

LeveragingTCN’s strategic partnership with Numeracle will safeguard contact centers’ calls from being incorrectly classified as “fraud” or “scam.”

Registering Your Numbers to Prevent Blocking

The Numeracle partnership means you can register your numbers across the phone provider ecosystem to identify your legal ownership
of the numbers and your valid calling intent. This aggregated platform provides coverage across Verizon, Sprint, AT&T and T-Mobile wireless networks as well as the top call blocking/labeling apps such as YouMail and Hiya.

Further reading:


Avoiding Common (and Costly) TCPA Penalties with Call Center Technology

Common TCPA Violations and Fees

Common Violations:

  • Autodialing cell phones listed in the Do-Not-Call Registry.
  • Automated messages delivered to cell phones without PEWC (consent).
  • Unsolicited marketing robocalls.
  • Inadequate or absent disclosures during a phone call.

Fees:

  • The standard fee for a call made in violation of TCPA is $500.
  • Plaintiffs have sought up to 3x the fee for up to $1500 per call.
  • Check out the costliest fines to date – they all come from these common violations.

Call Center TCPA Compliance Solutions

Manually dial calls:

  • Modern platforms can automate and deliver important parts of the call, like CMS data and call/IVR history – minus the dialing. Manual dial systems mean businesses minimize autodial restriction risks.

Manually approved calls:

  • Put a person into the calling system by having them manually approve calls that are presented by the automated system.
  • Train call approvers to screen for TCPA compliance criteria like time zone, cell phone vs. landline, PEWC vs verbal consent, etc.
  • Use a system that loads caller data into the call before approval to look for do-not-call requests that may not have been formalized yet, need review, etc.
  • Tip: TCN’s manually approved call system lets you switch between approval and taking calls, which means less downtime for approvers.
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Cell Phone Scrub:

  • Use the platform to automatically check for cell phones to keep autodialed campaigns flowing their fastest.

Automate Calling Rules:

  • Set up automatic rules to prevent or limit calls by timezone, area code, state-by-state, etc.

Record Calls:

  • Record calls to capture verbal consent, agreements, etc.
  • The strongest consent is a prior express written consent (PEWC), but recorded and documented verbal consent can still provide a solid defense should a call recipient later claim they requested no contact.
  • Call recording can help keep clients happy. Recording and smart-transcription can help you keep a handle on unruly or underperforming agents.

Prior Express Written Consent:

  • Include language that permits contact for attempts to collect a debt, for marketing purposes, and for account servicing. A well-written consent form included into any purchase or service will prevent confusion later and help control risk if the need to contact arises.

Maintain an Organization-Specific Do-Not-Call List:

  • This is actually a part of the TCPA. Businesses are required to maintain their own internal do-not-call lists, and those internal lists must (like those on the national list) be honored for 5 full years.

Include Disclosures:

  • Provide the caller’s name, the name of the person or entity that the caller is calling for, and a telephone number or address where your organization can be reached. These disclosures can be easily automated to pop up for your agents to read with the latest systems.
  • Pop-ups for specific compliance and risk processes can give full prompts to agents for different compliance purposes as well as those for TCPA mandated disclosures.
  • Learn through call analytics where your compliance gaps live.

TCPA Best Practices with Call Center Software

Automated Calls, Texts and Voicemail Checklist

Residential phones:

  • Do not call before 8 a.m. or after 9 p.m. local time.
  • Exclude residential numbers on the National Do-Not-Call List.
  • Exclude residential numbers on your in-house do-not-call List.
  • Exclude cell/mobile/smartphones from automated calls, texts, or voicemails unless the called party has already given prior express written consent (PEWC), particularly in the case of telemarketing.
  • Include a mandatory disclosure for your agents:
    • Disclose the name of caller, the company from which the call originates, and a phone number or address where they can be reached.
  • Do not make telemarketing calls using an automatic dialing system without prior express written consent (PEWC) from the called party.
  • Set up calling equipment to disconnect within 15 seconds or four rings of an unanswered telemarketing call.
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For prerecorded or artificial voice messages:

  • At the start of your message, state the name of the business placing the call and leave a phone number that your business can be reached. Long-distance and toll numbers do not meet this requirement.
  • Give an opt-out/do-not-call IVR option.

Calls that are Exceptions to TCPA

What about all the many different types of calls that aren’t telemarketing? Surely those calls have some leniency? Well, if those were your thoughts, you were partially right. Here’s a non-exclusive list of calls that are exempt from TCPA.

  • Manually dialed calls that have no pre-recorded message.
  • Calls made for emergency purposes.
  • Calls not made for a commercial purpose.
  • Calls made for commercial purposes but without telemarketing or advertising content, such as calls made to collect a debt.
  • Calls made by or for a tax-exempt nonprofit organization.

Capturing Consent to Reinforce TCPA Compliance

Consent to call your clients is a great pathway to a better relationship with customers and solid compliance with the TCPA. The best way to avoid TCPA complications and build a solid foundation for lasting communication begins with clear and up-front requests for consent.

Build Consent in Early

The moment you begin a business relationship with a customer, either through a loan, a product or a service, be sure the contract involved includes permission to be contacted about payment. If you can build business through marketing calls, make it clear that they may be contacted for marketing purposes.

Give Customers Options

Always give customers and contacts a choice to opt out of marketing calls, texts or messages. This can ensure that if they are no longer interested upgrading or enhancing their current relationship, they will still take note when payment reminders or service changes, etc. are being communicated.

Defense Against Litigation: Omnichannel?

Defending against TCPA litigation means always keeping respect for the customer’s agreed level of contact. While considering other methods of contact might seem like a workaround, this is not likely to serve businesses well. Rather, omnichannel is best used when it’s in the customers interests. Meet them on the channels they prefer and respect the limitations they put on different modes of contact. Also, prior express written consent keeps things professional and defensible when the relationship might be strained due to the ability to pay or concern arises regarding contact. TCPA regulation training is a great defense against TCPA concerns. Train call center floor managers on what they need to know to keep everything ship-shape and compliant.

Get the Manager's Free Guide to Call Center Regulations and get ahead of the curve on your call campaigns.

TCPA Developments and Case Law

TCPA Called into Question – An Exception’s Constitutionality

In January 2020, the SCOTUS approved a writ of certiorari for a lower court’s ruling on the government-debt exception to the TCPA.

That’s law lingo for having a higher court review a decision by a lower court – not a magic spell from a famous wizard.

So, what’s the big deal?

Back in April 2019, “the U.S. Court of Appeals for the 4th Circuit ruled that a 2015 amendment to
the TCPA creating an exception to the law for autodialed calls relating to government debt is unconstitutional.”

In other words, the exception allowed the use of autodialing equipment for companies collecting government debts (but not for anyone else).

Well, for everyone else out there trying to collect on a debt, this smacked of “content-based” discrimination. The courts eventually removed the exception, but not for the reason of discrimination against collectors.

Instead, they removed the exception because it “has an expansive reach and interferes with the privacy of millions of
American consumers by authorizing a nearly unlimited proliferation of disruptive and intrusive automated debt-collection efforts.”

The petition to review the TCPA exception was granted to the U.S. Attorney General and the FCC. While this review doesn’t attack the entire TCPA, it could have implications for nearly identical petitions filed by the likes of Facebook and Charter Communications – one of which hopes to address the definition of an ATDS.

Defining an Automatic Telephone Dialing System (ATDS)

A lot has happened to shape and define what qualifies as an ATDS – a key component regulating the use of equipment by call centers and contact centers.

Multiple cases in recent years have helped to shape the court’s interpretation of what qualifies as an ATDS.

In Collins v. National Student Loan Program, 2018 WL 6696168,the judgment went to the defendant (NSLP). It was ruled that its human-initiated dialing tool didn’t qualify as an autodialer due to not having the ability to “to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.”

A similar outcome underscored the legality of tools that expedite calls but which are not an ATDS, with the court stating in Fleming v. Associated Credit Services:

Does a system that dials numbers from a list that was not randomly or sequentially generated when the list was created qualify as an ATDS? With only the statutory text to guide me, I am convinced that the answer is no.

This is terrific news for the many TCPA-compliant collections agencies who depend on being able to contact their accounts in an efficient and effective way.

A Twist: First TCPA, Now TRACED Act

Complicating matters for contact centers and call centers everywhere, the TRACED Act was passed in early 2020.

The TRACED act increases the statute of limitations for those who made robocalls in violation of the TCPA.

Pretty scary. Unfortunately, it does get worse.

The main objective of the TRACED Act is to stem the billions of illegal robocalls plaguing Americans.

It empowers telephone service providers to block calls at their level. However, legitimate businesses need not worry, as long as they don’t trip over the stipulations that trigger blocking. Think of it like the CAN-SPAM Act. Businesses can still
send legitimate emails, and only the violators were sent into a spin.

Take a look at the some of the act’s details:

  • Telephone providers must adopt call authentication technology to prevent call spoofing and fake numbers.
  • Liability for illegal robocalls extended from 1 year to 4 years.
  • Fines increased to include an additional penalty “not to exceed $10,000.” That’s per violation, mind you.

For call centers and contact centers around the world, laws like the TCPA and TRACED Act can cause a lot of undue stress to hard working managers and directors.

Grab your copy of the Manager’s Guide to TCPA Compliance and stay on top of the regulations that affect your business processes and procedures.

Request a Demo: Click or call today and let TCN help transform your contact center.

TCPA Compliance FAQ’s

What’s an Abandoned Call and Why Does It Matter?

Abandoned calls are calls where nobody answers the call recipient’s spoken greeting within two seconds. These abandoned calls matter to outbound telemarketers because TCPA regulates the maximum rate of calls being abandoned. This is to prevent unnecessary calling and wanton use of telephone lines. It is also designed to encourage rapid, efficient use of call recipient time, and prevent jamming their line with a live call when nobody is there to answer.

Does TCPA Apply to Text Messages?

Yes. The TCPA applies to texts just as much as it applies to voice calls. To send a customer a text, you must have prior express written consent (PEWC) and a current business relationship. Recipients must also be able to opt out of texts whenever they wish.

What’s a Predictive Dialer?

Predictive dialers are applications that dial multiple numbers using algorithms designed to keep your staff calling, reduce wait time between calls, and make sure staff are not connected to disconnects/hangups, answering machines, etc. Also, they estimate normal call lengths and begin dialing near the normal end of certain types of calls. This prevents overusing lines, sending too many outbound calls at once, etc.

What’s an Autodialer?

Autodialers are equipment or applications that automatically dial phone numbers. They can route calls to agents once someone has answered the call or play a voice message. Autodialers are regulated by the TCPA.

What Is an ATDS?

ATDS stands for Automatic Telephone Dialing System. This can be used to refer to predictive dialers, autodialers, robocallers, etc. If a device automatically dials phone numbers in any way, it can be called an ATDS.

What Is a Robocall?

Robocalls are automated voice messages sent over the phone.

What Is Prior Express Written Consent (PEWC)?

Prior express written consent is written consent from your client or customer that expressly states their willingness to receive texts, voice messages, automated calls, or whichever form you elect to reach them. It is absolutely your best friend if you hope to reach customers on their phones. TCPA compliance and PEWC consent go hand in hand.

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Disclaimer

The content of this page is not legal advice and is to help readers get a better grasp of the nature of TCPA compliance and various issues around improving their compliance knowledge. This should not be construed as legal advice. Seek the counsel of a legal professional before undertaking calls or implementing changes to your organization. Rulings and orders often change the legal landscape.

While we seek to give you the best and most up-to-date information regarding TCPA compliance and news, the best practice is to track and closely follow cases and developments around these certain rules and regulations.