New TCPA Rules for Oct 16 2013 Telemarketing

[Thad.Sipple]

This "law" only helps the professional plaintiffs, and the business trying to abide by the law are the ones that will suffer.

 

[Rearden]

Help me understand.

Does this render telemarketing leads off a cold list, using an autodialer, non-compliant and illegal?

 

[Justin Bilyj]

Help me understand.

Does this render telemarketing leads off a cold list, using an autodialer, non-compliant and illegal?

Unless they are on opt-in lists.

I just figure all the internet leads will have a tos for the person to optin at the bottom of the lead sheet.

 

[Mick_Keyou]

http://m.kleinmoynihan.com/?url=htt...effective-october-16-2013/&dm_redirected=true

Not sure how accurate this info is, but a few interesting things from their page:

1. "Telemarketing" calls include those made by advertisers*[2]*that offer or market products/services to consumers. Purely informational calls and calls for non-commercial purposes are exempt from the FCC's regulations.

What if you called for medsupps initially as an informational courtesy call? This is how many of the medigap opening scripts start out anyway?


2. Limited exceptions apply to this requirement, such as calls/texts from the consumer's cellular carrier, debt collectors, schools, informational notices and healthcare-related calls.

Medsupps fall under "health related calls"?

 

[Sherd]

Alright Josh,

I'm calling you out on this one. Do you have any input on this new law?

sherd

 

[GreenSky]

The way I read this: 1) Beginning October 16, 2013, prior express written consent will be required for all autodialed and/or pre-recorded calls/texts sent/made to cell phone and pre-recorded calls made to residential land lines for marketing purposes.

is that we can't call cells OR use pre-recorded calls to land lines. Seems to me that using an autodialer simply to call someone (other than cell) is fine.

Rick

 

[Josh]

Alright Josh,

I'm calling you out on this one. Do you have any input on this new law?

sherd

I spent most of the day traveling to New York and am just now reading this on my phone.

Initially I'm inclined to agree with Rick on his points.

From an enforcement perspective I'm curious how they'll validate it was done by hand vs using a dialer. There is nothing unique about the way a call is received from a dialer vs a landline, static, dropped calls, etc all happen either way.

From a personal perspective I've spent a small fortune getting my dialer off the ground so I'm biased, but it looks like more of a nuisance than anything else. Even running a single line is more efficient than by hand and if it was in click to dial vs power dial it sounds like that's acceptable either way.

I'm sure this thread is far from over and I'll have more time to research and comment on it later though.

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Not sure how accurate this info is, but a few interesting things from their page:

1. "Telemarketing" calls include those made by advertisers*[2]*that offer or market products/services to consumers. Purely informational calls and calls for non-commercial purposes are exempt from the FCC's regulations.

What if you called for medsupps initially as an informational courtesy call? This is how many of the medigap opening scripts start out anyway?

If the goal is to ultimately get a sale, it's not "purely informational". Walks like a duck, quacks like a duck, probably a sales call. If you were literally offering free consults and would never take a fee or make a commission that's different, but if you have any iota of a goal of making a sale, that's where it crosses the line.

2. Limited exceptions apply to this requirement, such as calls/texts from the consumer's cellular carrier, debt collectors, schools, informational notices and healthcare-related calls.

Medsupps fall under "health related calls"?

No. It's referring to a doctor actually calling you, not health insurance related calls. A gentleman in Florida thought this was an excuse to voice broadcasting before and he was perhaps well intentioned, but incorrect. If you read the TCPA it even goes on to say that (paraphrasing slightly) if a doc uses voice broadcasting to remind you about a doctors appointment, no problem, if the doc wants to sell vitamins, he can't robo call, even though he's in the clear on the healthcare related portion, he can't use that to try to sell the other products not directly related to the treatment.

To quote myself from an article I wrote at FTC Robo Call Ban | Auto Dialer Services. That was specifically with respect to robo calls, but this is the litmus test they're using across all the provisions of the TCPA.

The HIPAA Privacy Rule permits only three types of calls, whether “live” or prerecorded, by a healthcare provider or its business associates without a patient’s prior authorization – namely: (1) calls to describe a health-related product or service that is provided by, or included in a plan of benefits of, the covered entity making the communication; (2) calls for treatment of the individual; and (3) calls for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual. Only these three categories of prerecorded healthcare message calls are exempt from the 2008 TSR amendments prohibiting telemarketing calls that deliver a prerecorded message. Some examples of exempt healthcare-related HIPAA calls are:

Prerecorded message calls made by or on behalf of a pharmacy to provide prescription refill reminders;
Prerecorded message calls made by or on behalf of a medical provider to provide medical appointment or other reminders (e.g., availability of flu shots or mammograms);
Prerecorded message calls made by or on behalf of a durable medical equipment supplier to document that a patient has used his or her current supply (e.g., of insulin needles or respiratory supplies) before sending additional supplies; and
Prerecorded message calls by or on behalf of a case manager to check on a patient’s condition.
Prerecorded messages involving products or services not prescribed by a doctor or other healthcare provider as part of a plan of treatment, and therefore not within the healthcare exemption would include, for example:

Prerecorded message calls made by or on behalf of a provider of vitamins, minerals, or alternative medical therapies;
Prerecorded message calls made by or on behalf of a provider of gym or health club memberships; or
Prerecorded message calls made by or on behalf of a provider of weight loss products or programs.
In one sentence it makes it perfectly clear: “Prerecorded messages involving products or services not prescribed by a doctor or other healthcare provider as part of a plan of treatment, and therefore not within the healthcare exemption ”

 

[Sherd]

The way I read this: 1) Beginning October 16, 2013, prior express written consent will be required for all autodialed and/or pre-recorded calls/texts sent/made to cell phone and pre-recorded calls made to residential land lines for marketing purposes.

is that we can't call cells OR use pre-recorded calls to land lines. Seems to me that using an autodialer simply to call someone (other than cell) is fine.

Rick

With number porting, how are we to know if it is a cell or not?

sherd

 

[VolAgent]

With number porting, how are we to know if it is a cell or not?

sherd

You won't. What will end up happening is the law will get gutted/overturned for lack of safe harbor. You thought you were dialing a land line, but it got ported to a cell and they go after you. Or, they put in the necessary safe harbors and gut it anyway.

And as I stated earlier, those overseas call centers that are spoofing their number, they'll keep calling no matter what. Even the US ones.

 

[KidsGotHeart]

So if you hand dial, you can dial cell numbers?