The Telephone Consumer Protection Act: Compliance Developments and What to Expect in 2015

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1 The Telephone Consumer Protection Act: Compliance Developments and What to Expect in 2015 November 2014 Mark W. Brennan, Partner

2 Overview Overview of the TCPA Recent Developments Issues to Watch What You Can Do 2

3 Overview of the TCPA Congress enacted the TCPA in 1991 specifically to curb aggressive telemarketing practices: Using automatic dialing equipment to make unsolicited calls to random or sequential telephone numbers Calling sequential telephone numbers in a way that ties up a block of telephone numbers and creates public safety risks Concerns about telemarketers shifting calling costs to wireless consumers 3

4 Overview of the TCPA (cont d) Imposes a number of restrictions on telemarketing calls, faxes, and other outbound communications. Some restrictions apply to non-telemarketing calls Implemented by the Federal Communications Commission ( FCC ) 4

5 Overview of the TCPA (cont d) Two increasingly problematic provisions: 1) No autodialed or prerecorded or artificial voice calls to wireless telephone numbers, absent an emergency or prior express consent. Applies regardless of content The FCC and some courts have determined that this applies to text or short message service ( SMS ) messages New FCC rules 5

6 Overview of the TCPA (cont d) 2) No prerecorded or artificial voice calls to residential telephone numbers without prior express written consent. Exceptions: Not a solicitation or telemarketing Not made for a commercial purpose Emergency calls By or on behalf of a tax-exempt nonprofit organization Healthcare calls subject to HIPAA 6

7 Overview of the TCPA (cont d) The TCPA defines an autodialer ( automatic telephone dialing system ) as 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 application of this definition is a key unsettled issue in today s TCPA landscape. The FCC has taken the position that (at least some) predictive dialers are autodialers (more on this later). 7

8 Percent Overview of the TCPA (cont d) Wireless rules increasingly important, particularly when serving younger Americans Percentages of adults and children living in households with only wireless telephone service or no telephone Children with wireless service only Adults with wireless service only Adults with no telephone service Children with no telephone service 0 Jan-Jun 2003 Jan-Jun 2005 Jan-Jun 2007 Jan-Jun 2009 Jan-Jun 2011 Jan-Jun 2013 NOTE: Adults are aged 18 and over; children are under age 18. SOURCE: CDC/NCHS, National Health Interview Survey. 8

9 Overview of the TCPA (cont d) TCPA Violations Can Be Costly Minimum statutory damages of $500 per call. Statutory damages of $1,500 per call for knowing or willful violations. Class actions allowed, with no cap on damages or de minimis exception: 1,000 calls = at least $500,000, potentially $1.5 million 9

10 Overview of the TCPA (cont d) Hogan Lovells has been deeply engaged in this area: Cross-practice TCPA Working Group. Represent clients in court and before the FCC, Federal Trade Commission, Congress, and state agencies. Secured dismissals and nominal settlements for clients in TCPA actions. Worked with the FCC to clarify TCPA rules. Working with AAHAM to obtain a declaratory ruling and exemption for healthcare calls 10

11 Recent Developments Court decisions Mais Eleventh Circuit overturns outlier Florida case on consent Provision of the number may be enough, but context matters Still unsettled in some circuits Crunch Helpful autodialer case for text messaging Rejects FCC s expansive interpretation of autodialer Helpful on capacity issue 11

12 Recent Developments (cont d) FCC decisions GroupMe A consumer s prior express consent may be obtained through and conveyed by an intermediary However, parties remain liable for TCPA violations if, in fact, intermediaries do not obtain prior express consent Cargo Airline Association First-of-its-kind exemption Free-to-end-user voice calls and text messages for nontelemarketing package delivery notifications Fax Advertisements Order Already appealed Time is of the essence to file a waiver request 12

13 Recent Developments (cont d) More than 30 parties have filed petitions asking the FCC to clarify issues: Autodialer definition Which party is the caller? Disclosure rules The meaning of called party and liability for calls to reassigned wireless numbers Does the consumer have a right to revoke consent? What does prior express consent require? Are voic messages alone still calls? 13

14 AAHAM Filed: Oct. 21, 2014 Issue: clarification and exemption for healthcare calls Proposals: FCC should clarify that the provision of a number to a healthcare provider demonstrates prior express consent for non-telemarketing calls (voice and text) by or on behalf of that provider It should also grant an exemption for healthcare calls, subject to conditions 14

15 Santander Consumer USA Filed: July 10, 2014 Issue: whether and how prior express consent for non-telemarketing calls can be revoked Proposals: FCC should clarify that prior express consent to receive non-telemarketing calls and texts to cellular phones using ATDS and/or prerecorded voice messages cannot be revoked If there is a right to revoke, the FCC should confirm that the caller may designate methods for consumers to revoke, including in writing, by , by text message, by fax, or as prescribed by the FCC 15

16 ACA International Filed: Jan. 31, 2014 Petition for Rulemaking asking the FCC to confirm that not all predictive dialers are autodialers; confirm that capacity under TCPA means present ability; clarify that prior express consent attaches to the debtor, not the specific telephone number supplied by the debtor when the debt was incurred; and establish a safe harbor for autodialed wrong number non-telemarketing calls to wireless phones 16

17 United Healthcare Services, Inc. Filed: Jan. 16, 2014 Issue: liability for calls to reassigned wireless telephone numbers for which the caller had obtained prior express consent Proposals: prior express consent of the called party encompasses non-telemarketing, informational calls until the caller learns that the telephone number has been reassigned called party encompasses both the consenting party and the new subscriber to a reassigned number good faith exception 17

18 Professional Association for Customer Engagement Filed: Oct. 18, 2013 Preview dialing and autodialer definition An autodialer must have the capacity to dial numbers without human intervention The capacity of a system means what that system can do at the time the call is placed, without additional modification 18

19 Issues to Watch What does autodialer mean? What calls qualify as HIPAA-covered calls? Will there be a TCPA rulemaking? Will there be more industry-specific exemptions? What constitutes telemarketing when helping someone complete an application? To what extent does the TCPA apply to mobile device applications and new technologies? How will the FCC apply its new prior express written consent requirements? 19

20 What You Can Do Assessing your existing data What level of consent can you demonstrate? Have you obtained additional consents under the new rules? Reviewing intake and account forms, calling scripts, and other consent channels Are the disclosures adequate? Are the telephone number types specified? Is your privacy policy sufficient? Analyzing the available opt-out mechanisms Reviewing calling policies and manuals Preparing training modules for employees 20

21 What You Can Do (cont d) Analyzing vendor agreements for TCPA compliance and adequate protection (including vicarious liability issues) Assessing call monitoring and recording compliance issues Evaluating management of customer number changes Ensuring adequate record retention Obtaining insurance Monitoring TCPA litigation developments and pending FCC proceedings for filings and decisions of interest Aggressively and intelligently defending against TCPA lawsuits 21

22 Mark Brennan Partner T Hogan Lovells has offices in: Alicante Amsterdam Baltimore Beijing Brussels Budapest* Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Jakarta* Jeddah* Johannesburg London Los Angeles Luxembourg Madrid Mexico City Miami Milan Monterrey Moscow Munich New York Northern Virginia Paris Philadelphia Rio de Janeiro Riyadh* Rome San Francisco São Paulo Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Zagreb* "Hogan Lovells" or the "firm" is an international legal practice that includes Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses. The word "partner" is used to describe a partner or member of Hogan Lovells International LLP, Hogan Lovells US LLP or any of their affiliated entities or any employee or consultant with equivalent standing. Certain individuals, who are designated as partners, but who are not members of Hogan Lovells International LLP, do not hold qualifications equivalent to members. For more information about Hogan Lovells, the partners and their qualifications, see. Where case studies are included, results achieved do not guarantee similar outcomes for other clients. Attorney Advertising. Hogan Lovells All rights reserved. *Associated offices Hogan Lovells

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