TCPA Compliance After Oct. 16, 2013: Everything Marketers and Lead Generators Need to Know

The Federal Communications Commission (FCC) enacted the Telephone Consumer Protection Act of 1991 (TCPA), which shields consumers from unwanted telemarketing calls, prerecorded or autodialed calls (“robocalls“), fax transmissions, and text messages. However, on Feb. 15, the FCC revealed that it would adopt two revisions that will go into effect on Oct. 16:

• one that requires “prior express written consent” for all autodialed and prerecorded calls and telemarketing text messages; and
• another that eliminates an exemption that allowed advertisers to skirt around getting prior written consent by claiming an established business relationship (e.g., a past purchase).

These changes are of utmost interest to marketers and lead generators, as damages could range from $500 to $1,500 per infraction.

To learn more about the upcoming amendments to the TCPA, we spoke with Chris McArdle, executive director of interactive markets for Neustar Information Services. Read our Q&A below to find out who will be most affected by the changes, the three things marketers should do to prepare themselves and the overall impact on lead generation.

First off, how would you explain the changes to the TCPA that will go into effect on Oct. 16?
The FCC’s requirements for “consent” to receive autodialed calls to mobile telephone numbers and prerecorded calls to mobile or fixed lines will change for promotional or marketing calls. Under the new rules, you must have the prior, affirmative, written consent of the telephone subscriber to make such calls. The FCC no longer considers it permissible to infer the consumer’s consent based on the fact that they have provided a particular number, for example. There are a variety of specific requirements related to the manner in which consent is requested and acquired.

The FCC has also provided clarification regarding the scope of technology covered by the term “automatic telephone dialing system (ATDS).” It is quite broad, encompassing autodialers used in preview mode. Many law firms have indicated that it may in fact cover “speed dial” and “push to call” technology. Be sure you are getting proper legal counsel on your process; don’t simply ask your IT department their opinion.

While this is the new rule that goes into effect on Oct. 16, there have been a number of significant court cases related to TCPA that, among other things, make it imperative to know whether or not the number you are calling using an ATDS is a landline or a mobile line, and furthermore to confirm that the current subscriber of the number you are calling is in fact the individual who gave you permission to call. Given the increasing frequency with which consumers are “cutting the cord” and porting landlines to mobile subscriptions, as well as the rate at which mobile numbers are reissued in popular area codes, it is mission critical to ensure that your information is verified and very current.

What stakeholders will be most affected by the changes?
Anyone and everyone using ATDSs is affected by the recent court rulings and the FCC’s expanded definition. Those making promotional or marketing calls will be most affected by the new rules regarding consent effective Oct. 16. I have been very busy talking with the banking, retail, automotive and education sectors, to name a few. If you are a lead generator, lead buyer or call center, TCPA will have a significant impact on your business going forward.

What are the major implications that marketers should care most about?
You need to understand: a) whether or not you are using ATDS equipment, considering the broad manner in which it is defined; b) if you are dialing a landline or a mobile number; and c) if you are dialing a mobile number, whether you have consent from the current subscriber. This third point is an area that is not getting the same attention as the consent piece. If you think you are calling Jack’s mobile phone and you in fact are calling Jill’s