Technology and IP Forum Back to School Marketing Primer Marketing Through Technology, What is Allowed and What Isn t?

Transcription

1 Technology and IP Forum Back to School Marketing Primer Marketing Through Technology, What is Allowed and What Isn t? 1

2 SPEAKERS Michelle Cohen Member, Ifrah PLLC Over Two Decades Of Marketing Law Experience, Including TCPA Counseling And Defense Since FCC First Implemented Law. Clients Include Large Call Centers, Retail Companies, Online Retailers Has Defended TCPA Class Actions/FCC And FTC Enforcement Actions/State AG Investigations Obtained Rescission Of FCC TCPA Citation On Behalf Of Messaging Provider Counsels Clients Daily On Marketing Strategies Crafts And Assists In Implementation Of Sweepstakes/Contests And Other Promotions Certified Information Privacy Professional U.S. 2

3 SPEAKERS Chris Oatway Assistant General Counsel, Verizon Legal Department Chris Has Represented Verizon On Key Communications Industry Issues Before The Federal Communications Commission, Congress, The Courts, And State Regulators. Current Portfolio Includes Consumer Protection, Spectrum Auctions And Spectrum Sharing Initiatives, And Transaction Approvals. Prior To Verizon, He Spent Several Years In Private Practice In Washington, DC, With Covington & Burling, Where He Focused On Antitrust And Other Complex Litigation. After Graduate School And Before Studying Law, Chris Was A Senior Analyst At An Economic Consulting Firm Where He Provided Economic Analyses For Antitrust Litigation And Analyzed Mergers Under Review By U.S. And Foreign Regulators. He Is Fluent In Spanish And Has Written And Presented On Mexico's Regulatory Regimes. 3

4 SPEAKERS John B. Adams Deputy Chief, Consumer Policy Division, Consumer and Governmental Affairs Bureau, FCC John B. Adams Is Deputy Chief Of The Consumer Policy Division Within The Federal Communications Commission s Consumer And Governmental Affairs Bureau. In That Capacity, He Is Responsible For Policy-Oriented Proceedings, Including Rulemaking And Declaratory Ruling, Arising Under The Telephone Consumer Protection Act. Previously, He Served In Staff And Leadership Positions At The FCC, Was In-House Counsel At A Telecommunications Company, Was A Partner In A DC Telecommunications Law Firm, And Was Founder And Principal Of A Telecommunications Boutique Law Firm. In Addition To A Law Degree, He Holds An MBA And A BS In Economics. *Mr. Adams Did Not Participate In Preparation Of The Written Presentation Used During This Panel Discussion. 4

5 LEARNING TCPA THE HARD WAY $10 Million Settlement $10 - $15 Million Settlement $40 Million Settlement 5

6 Telephone Consumer Protection Act ( TCPA ) The Basics TCPA Enacted In 1991 To Stop Abusive/Cost-Shifting Telemarketing Practices. 47 U.S.C. 227 Rules Implemented By Federal Communications Commission ( FCC ) First Rules 1992, Continue To Revise/Clarify. 47 C.F.R Enforced By FCC, State Attorney Generals, Private Lawsuits Including CLASS ACTIONS Statutory Damages $500 Per Text/Call; Trebled If Deemed Willful 6

7 What Does TCPA Cover? Makes Unlawful Certain Uses Of Calls/Faxing Some Provisions Not Limited To Telemarketing Cover All Calls Some Provisions Not Limited To Residential/Consumer Contacts Depends On The Technology And Who Is Being Called Also Includes Do Not Call ; Calling Time Restrictions 7

8 What Does TCPA Cover? Cont d Special Lines - Includes Mobile Numbers (Can Be Business Or Residential) Unlawful To Make Any Call Using Any Automatic Telephone Dialing System Or Artificial Or Prerecorded Voice Unless Emergency Purpose Or Prior Express Consent Of Called Party Calls Include Texts Per FCC 2012: FCC Clarified If Telemarketing To These Numbers Need Prior Express Written Consent (27 FCC Rcd. 1830) If Informational Call e.g., "Comcast Will Be At Your House Between 1-3pm For Service Prior Consent Can Consist Of Person Providing Phone Number 8

9 What Does TCPA Cover? Cont d Automatic Telephone Dialing System Heavily Litigated Term Defined In TCPA As: Equipment Which Has The Capacity To: Store Or Produce Telephone Numbers To Be Called, Using A Random Or Sequential Number Generator; And To Dial Such Numbers (47 U.S.C. 227(a)(1)) 9

10 Recent Clarifications In July, FCC Released Declaratory Ruling And Order Resolving A Number Of Petitions (FCC Release FCC 15-72) Some Key Clarifications: Autodialers Dialing Equipment Meets Definition If It Has Capacity To Store Or Produce, And Dial Random Or Sequential Numbers, Even If Not Presently Used For That Purpose Autodialers Need Only Have The Capacity To Dial Random And Sequential Numbers, Rather Than The Present Ability To Do So Equipment That Lacks Present Capacity To Dial Randomly Or Sequentially Not Exempt If In Doubt, Assume Autodialer Means If Calling/Texting Mobile Need Consent If Telemarketing Need Prior Express Written Consent 10

11 Recent Clarifications Cont d Special Exempted Calls Time-sensitive Financial And Healthcare Issues Fraud/Identity Theft Risks/Possible Data Breaches/Steps To Take To Prevent Or Remedy Harm Caused By Data Breaches/Actions Needed For Money Transfers Provision Of Phone Number To Healthcare Provider Prior Express Consent For Calls Subject To HIPPA Wireless Number Provided By Customer Call Not Charged To Recipient No Telemarketing Concise 1 Minute Or Less For Voice And 160 Characters For Texts No More Than 3 Messages Per Event Over 3 Day Period Easy Means Of Opt-Out 11

12 What Does TCPA Cover? Cont d Residential Lines Unlawful To Initiate A Call Using An Artificial Or Prerecorded Voice To Deliver Message Without The Prior Express Consent Of Called Party (Unless Emergency Or Exempt) 2012 FCC If Telemarketing Must Have Prior Express Written Consent (Like Wireless). No Longer Existing Business Relationship Or Consent If Non-Telemarketing We Are Calling To Confirm Your Appointment At 3pm Tomorrow Do Not Need Consent If Autodialed, But Live Caller Even If Telemarketing, No Consent (Different From Wireless) (But May Need DNC Scrub) Burden Always On Calling Party To Prove Consent 12

13 Prior Express Written Consent What Is Prior Express Written Consent? (47 CFR (f)(8)) An Agreement, In Writing, Bearing The Signature Of The Person Called That Clearly Authorizes The Seller To Deliver To The Person Called Advertisements Or Telemarketing Messages Using An Automatic Telephone Dialing System Or An Artificial Or Prerecorded Voice, and The Telephone Number Authorizing Advertisements Or Telemarketing Messages To Be Delivered. 13

14 Prior Express Written Consent Cont d Must Include A Clear And Conspicuous Disclosure Informing Consenting Party: By Executing The Agreement, Such Person Authorizes The Seller To Deliver Or Cause To Be Delivered Telemarketing Calls Using An Automatic Telephone Dialing System Or An Artificial Or Prerecorded Voice; And The Person Is Not Required To Sign The Agreement (Directly Or Indirectly), Or Agree To Enter Into Such An Agreement As A Condition Of Purchasing Any Property, Goods, Or Services. 14

15 Recent Clarifications Consent Consent Reassigned Numbers If Call Without Knowledge Of Reassigned Numbers And Believe Have Valid Consent To Make Call - Should Be Able To Initiate One Call After Reassignment To Opportunity To Gain Actual Or Constructive Knowledge Of Reassignment. Suggestions For Reassigned Numbers 15

16 Prior Express Written Consent Cont d How To Get Prior Express Written Consent? Many Companies Have Put In Terms Would Need To Be Affirmative Acceptance Not Just Fine Print Signature Includes Electronic Signature e.g. Website Form, Keypress Voice Recording Recent Citations To Lyft/First National Bank Lyft People Couldn t Opt-out And Use The Services FNB Had To Agree To Receive Texts In Order To Use The Services/Didn t Inform People They Could Opt-out 16

17 Consent - Example 17

18 Consent Cont d REMEMBER! Consent Can Always Be Revoked Once Revoked, May No Longer Call Put On Company-Specific Do Not Call Does Not Matter That A Number Is Not On The Federal Do Not Call Or That Someone Does Business With Company Also Beware Mixed Messages If Informational Call/Text Has Marketing Don t Exceed Consent (e.g., Buffalo Bills Case) If You Have The Right Consent And Call With Telemarketing, Need Automated Opt-Out 18

19 What Does TCPA Cover? Cont d Unsolicited Fax Advertisements Also Prohibited (Covers Business And Home/Consumer) Exceptions Established Business Relationship Consent Opt-out Notice Requirements Once Opted-out, Cannot Rely On Existing Business Relationship 19

20 Do Not Call Registry How Does The Do Not Call Registry Work? Federal DNC Coordinated Between FCC/FTC Under TCPA And Telemarketing Sales Rule Covers Residential And Mobile (Not Business Numbers) If Making Non-Special Telemarketing (No Autodialed/Prerecorded To Mobiles, No Prerecorded Telemarketing To Residential Lines) Calls e.g., Live Call To Residential Number Need To Scrub Federal DNC (And States) Unless: Existing Business Relationship (3 Month-Inquiry/18 Month Purchase) Consent Also Company-Specific Do Not Call 20

21 Top 10 TCPA/Marketing Tips 1. Be Alert To Types Of Communications Being Used: Phone/ /Texts/ Sweepstakes & Combinations 2. Remember Some Parts Of The TCPA (Mobile) Apply To All Calls Not Just Telemarketing 3. Assess Current Status Of Consents How Being Obtained? Does Language Comply With Prior Express Written Consent Where Needed? Does Language Specifically Cover Your Company? 4. Third Party Marketers/Affiliates/Callers How Supervised? 5. Are Procedures In Place For Company-Specific Do Not Call List? 6. Review Procedures For Opt-outs Test to Make Sure They Work 7. Is Company Scrubbing Federal/State Do Not Call Databases Where Needed? 8. Are Procedures In Place For Flagging Potential Smaller Problems Before They Become Bigger Problems? 9. Consider Periodic Confirmations Of Contact Numbers When Have A Customer Contact Have CSR Confirm Numbers In Your Database. 10. Check Insurance Coverage/Indemnification Provisions 21

22 Other Hot Marketing Topics Can Spam Sending Commercial s (15 U.S.C et seq.) You Can Send Commercial s, Provided They Comply With Can Spam No Deceptive Subject Lines/Headers Opt-Out Mechanism And Implement Postal Address Designate Ad Or Commercial Solicitation More Limited Private Right Of Action 22

23 Other Hot Marketing Topics FTC: Ban On False/Deceptive Ads Applies Online, Apps, Social Networks, etc. FTC Endorsement Guidelines Need To Disclose If Company Has Paid Endorser, Provided Benefit, etc. Example Mommy Bloggers - Products To Try Advance Beta Launch Of Product With Discount Sweepstakes Entry 1. Lisa LillienVerified Jul 30 Celebrate #NationalCheesecakeDay for a month w/ me sweeps on your computer! #sponsored 23

24 Other Hot Marketing Topics Sweepstakes/Contests Prize, Chance, Consideration Could Be Illegal Lottery/Gambling Contest Prize, No Chance, Possible Consideration Sweepstakes Prize, Chance, No Consideration Alternative Means Of Entry (AMOE) No Purchase Necessary To Enter Or Win Do Not Require Lengthy Surveys Or Other Onerous Tasks Internet Entries OK 24

25 Other Hot Marketing Topics Some States Require Advance Registration/Bonding Florida And NY If Prizes Exceed $5,000; Rhode Island If Retail In State Terms And Conditions Make Clear Dates Of Sweepstakes/Contest, Who Is Eligible/Ineligible/How To Enter/How Many Entries/How And When Chosen/Conditions Such As Returning Eligibility Documents Twitter/Facebook/Other Social Networks Have Own Rules e.g., Stating Non-Affiliated And Releasing Them 25

26 Have You Ever Dealt With A TCPA Issue? 26

27 THANK YOU! QUESTIONS? website: ifrahlaw.com blogs: & 27