The FCC’s July 10th Declaratory Ruling on the TCPA has agencies concerned about contacting accounts via cell phone numbers. Some of the interpretations offered by the FCC have brought more confusion than clarification. During the ACA International Expo in Boston last week, ACA International General Counsel Robert Foehl and CEO Patrick Morris explained what these interpretations mean, and how the ACA has responded on behalf of its members.
Telephone Consumer Protection Act §227(a)(1)
The term “automatic telephone dialing system” [ATDS] means equipment which has the capacity—
a. to store or produce telephone numbers to be called, using a random or sequential number generator; and
b. to dial such numbers.
The definition of “capacity” in this instance has been interpreted to apply not only to the ability of technology at the time a call is made; but also to any future capacity the equipment may have. This must constitute more than a theoretical potential for future modification. The ruling also deemed predictive dialers and other software controlled systems flexible enough to be modified and therefore have the capacity of an ATDS.
Declaratory Ruling “One-call Exemption”
Callers who make calls without knowledge of reassignment and with a reasonable basis to believe that they have valid consent to make the call should be able to initiate one call after reassignment as an additional opportunity to gain actual or constructive knowledge of the reassignment and cease future calls to the new subscriber. If this one additional call does not yield actual knowledge of reassignment, we deem the caller to have constructive knowledge of such.
Many of the compliance tools needed to cope and comply with the language of the Declaratory Ruling are already offered by your dialer vendor. Here’s a brief summary of key pieces you may want to implement.
Cell Phone Scrubbing is a must. With the stringent definition of “capacity” it is imperative that every identified cell phone number be removed or excluded from your lists prior to dialing, and if needed, contacted on a separate manual-only connection. When implementing a scrubbing technology keep these 4 necessities in mind:
Additional call recording services may be useful. Monitoring voicemail and/or answering machine messages may yield information to indicate the number has been ported or transferred to a new subscriber—protecting against the one-call safe harbor.
At IAT, our team of experts has pointedly followed industry legislation and crafted tools to aid our customers in their efforts to maintain outbound dialing compliance. We strive to be up-to-date on the latest compliance and regulation to maintain a Compliance Suite of tools that address these and other concerns you may have. Please consult your own legal counsel to decide the best way to implement these tools at your agency.
This article was written by Jenna Bowman