DISCLAIMER. Two important things to note: Thanks for your Cooperation!

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2 DISCLAIMER Two important things to note: The materials in this Presentation are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up- to- date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney- client relationship. You should not act or rely on any information contained in this Presentation without first seeking the advice of an attorney. The information contained in this presentation and any accompanying documents is confidential, may be privileged, and is intended solely for the person and/or entity to whom it is presented to. They are the property of CorvisaCloud, LLC. Unauthorized review, use, disclosure, dissemination or copying of this communication, or any part thereof, is strictly prohibited and may be unlawful. Thanks for your Cooperation!

3 MEET THE PRESENTERS Matt Lautz President, CorvisaCloud Michele Shuster Attorney, Mac Murray, Petersen & Shuster

4 WHAT YOU LL LEARN What are the regulations Tips & tricks to gain consent Fines for not complying Practical considerations to mitigate risk

5 RECENT CHANGES FCC s Amended TCPA Regulations Express Written Consent Requirements Calls made to cell phones using an Automatic Telephone Dialing System ( ATDS) Prerecorded telemarketing messages sent to residential numbers Became effective October 16, 2013 Automated Opt-out Requirements Prerecorded telemarketing messages Abandoned call messages Became effective January 14, 2013 Abandoned Call Rate Calculations Maximum of 3% per campaign over 30 day period Became effective November 15, 2012

6 WHAT IS AN ATDS? Automatic Telephone Dialing System (ATDS) Statutory Definition Equipment which has the capacity to: (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. FCC Ruling A predictive dialer is an ATDS because the underlying function is the same as equipment that dials numbers randomly or sequentially- - the capacity to dial without human intervention.

7 CALLS TO CELL PHONES General Rule: Cannot use an ATDS or a prerecorded message to call a cell phone without the called party s prior consent 10/16/13 New Rules: Telemarketing Calls- must have prior express written consent for advertising/telemarketing calls Electronic signature is sufficient Specific requirements must be met (discussed below) Mixed purpose calls treated as telemarketing calls Non- telemarketing Calls- prior express consent required for ALL calls (regardless of the purpose) NOTE Consent is not required if the call is made without using an ATDS or a prerecorded message

8 ATDS CASE LAWS Satterfield (9 th Circuit 2009) The relevant inquiry is the capacity of the equipment, NOT the manner in which the call is actually made This decision has been followed by several district courts, including at least one (N.D. Illinois) outside the 9 th Circuit Nelson (W.D. Wisconsin 2013) Calls made using preview mode on a predictive dialer were made with an ATDS because the system had the capacity to make automated calls (i.e. dial calls in predictive mode) Vacated by s@pula@on of par@es WE BELIEVE ONE TOUCH DIAL IS OK SO LONG AS THE EQUIPMENT USED TO MAKE THE CALL DOES NOT HAVE THE CAPACITY TO DIAL WITHOUT HUMAN INTERVENTION

9 PRIOR EXPRESS CONSENT TCPA / FCC Regulation No official definition for this term FCC Rulings 1992 Order- persons who knowingly give their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary Declaratory Ruling- the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt. TIP: Request documenta@on to show consumer/debtor provided their number directly to the seller/creditor

10 PRIOR EXPRESS WRITTEN CONSENT How Do I Obtain It? Summary of Requirements Written Agreement: Consent must be obtained in a written agreement, which includes the signature of the person providing consent. An electronic signature is sufficient to effectuate a written agreement in accordance with the E- SIGN Act. Identity of the Seller: The agreement must specifically indicate the seller(s) to whom consent is being provided. Telephone Number: The agreement must include the cellular telephone number at which the person consents to receive calls. If the written agreement includes more than one number, it must be clear which number(s) the person is consenting to receive calls at.

11 PRIOR EXPRESS WRITTEN CONSENT How Do I Obtain It?(Cont.) Summary of Requirements Affirmative Action: The consumer must take some affirmative action to indicate his/her assent. Mandatory Disclosures: The agreement must clearly and conspicuously disclose: That the person is authorizing the seller to make telemarketing calls; That calls will be made using an ATDS (or prerecorded message, if applicable); and The person is not required to provide consent as a condition of purchasing any good/services. Documentation: The seller has the burden of proof to show that consumers provided written consent to be called. Recommended to keep all records for at least 5 years from the last date the consent is relied upon to make a call.

12 TIPS & TRICKS 5 Tips to Stay Compliant Full disclosure on file and website Dated agreement Tax- exempt, Non- profit or political call to landline is acceptable Written policies and procedures 5 Documentation of procedures and precautions If challenged, you will need to be able to prove compliance Written and recorded procedures and training will defeat a finding of willful and knowing violations

13 TIPS & TRICKS Tricks to Be Efficient E- Sign Act- digital / electronic signatures IVR opt- in Website form Text Message Voice recording Compliant scripting Lead nurturing with dialer Skills- based call queues to route calls

14 HAVE YOU MADE THESE CHANGES? What is the risk? Up to $16,000 penalty per call Up to $1,500 statutory damages per call (private lawsuits) Class actions pose most significant risk

15 TCPA CASE LAW Hunt (N.D. Alabama 2013) Equipment must have the present capacity to autodial numbers to constitute an ATDS If substantial modification or alteration is required for the system to have such capacity, it is not an ATDS Allowed Plaintiff, as part of discovery, to inspect any part of the telephone system(s) in use by Defendant at the time the calls were made, including: (a) dummy modules; (b) the mainframe; (c) any related software in Defendant s possession; and (d) any other equipment related in any way to Defendant s calls.

16 NOW WHAT? 1 Options for calling cell phones 2 Ways to mitigate risk 3 Practical considerations

17 OPTIONS FOR CELL PHONES Use an Auto- Dialer Prior express written consent for telemarketing calls Prior express consent for other calls Use a Desk Phone Can you meet all state and federal dialing rules? Caller ID, Call time restrictions, compliance monitoring, etc. Use a Non- ATDS Call Delivery Platform Can you prove that an ATDS was not used? Proactively think about compliance considerations

18 NOW WHAT? Creating a Defendable Position (non-atds Platform) Document the system s capacity (or lack thereof) Why it is not an ATDS Purchased Systems: obtain documentation from vendor Proprietary Systems: have engineers / IT personnel document capacity Segregate the non- ATDS from your ATDS Obtain a legal opinion for your specific system/configuration Have an expert witness ready to testify Capacity of system Segregation of the dialing systems

19 WAYS TO MITIGATE RISK Avoid liability caused by third parties Structure relationships to avoid common law principles of agency Conduct due diligence on sellers, telemarketers, vendors, lead generators, etc. Preliminary due diligence on the company and its principals Review consent forms/language Monitor complaints Recurring audits or certifications Indemnification provisions in contracts with 3 rd parties Prohibit use of sub- vendors without prior consent

20 PRACTICAL CONSIDERATIONS How to identify a cell phone number? Wireless number lists / Neustar ported number lists Use third party services to scrub your calling lists for you Re-assigned numbers Written consent is no longer valid if number has been reassigned Limit length of time between date consent obtained and date of call Use third party service to see if numbers have been reassigned Are damages from TCPA violations covered by insurance? No specific insurance for TCPA damages May be covered under commercial insurance policies State law and the scope of your insurance policy dictate???

21 PRACTICAL CONSIDERATIONS Employee training / scripting Purchased leads, lead generating tools- are they compliant? Recording keeping: Key- press consent CRM record keeping Audits Silent listening to your agents Performance management

22 THINGS TO REMEMBER Don t forget Even if you ve done business with or marketed to them before you still need to obtain proper consent Consent can always be withdrawn You re only as compliant as your records say you are Time of day rule Can t record every outbound call 2 party authorization- this call will be recorded DNC list- requests now honored indefinitely Internal DNC list- required and needs to be updated immediately!

23 Thank you!