FCC s Amendments to the Telephone Consumer Protection Act ( TCPA )

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1 { ;v1}{ ;v7}{ ;v6} FCC s Amendments to the Telephone Consumer Protection Act ( TCPA ) Mitchell N. Roth, Esquire Roth Doner Jackson, PLC 8200 Greensboro Drive, Suite 820 McLean, Virginia Phone: (703) Fax: (703) [email protected] Earlier this year, the Federal Communications Commission finalized amendments to its regulations implementing the Telephone Consumer Protection Act. Once fully effective, these amendments will further restrict the manner in which forprofit schools can initiate recruitment calls to the cell phones of past, current, and prospective students using both live operators and prerecorded messages, transmitting prerecorded recruitment messages to landlines, and provide further limitations on the practice of abandoning outbound calls. For-profit schools and marketing partners that do not implement new internal practices to ensure compliance with these amended regulations could be exposed to governmental fines and class action lawsuits. Although the ability of schools to initiate recruitment calls to cell phones has been restricted since 1991, the FCC cited mounting evidence of continued consumer frustration with unwanted calls to cell phones as the impetus in finalizing many of these amendments. Note that these new restrictions apply only to calls initiated with automated telephone dialing systems which, for the most part, include any calls that are not dialed manually regardless of whether the call will be connected to a live operator or a prerecorded message will be transmitted. Schools should be aware that the definition of automated telephone dialing system includes dialing equipment which has the capacity to store numbers and dial them randomly or sequentially. This definition is so broad that it even applies to predictive dialers even those that will immediately connect calls to live telephone agents since they generally have such capacity as well as any other dialing equipment with this capacity regardless of whether the capacity is utilized. Therefore, schools and their

2 vendors will not be permitted to call phones using predictive dialers without the recipient s prior express written consent, regardless of whether the calls are made using VoIP or traditional telephone service.. Although calls that are truly dialed manually with no automation are not affected by these regulations, courts and the FCC have interpreted automated telephone dialing systems broadly to include dialing equipment where a telephone number is manually entered or otherwise dialed. Additionally, many schools use internal/external call centers to contact potential students who requested information via the Internet -- most of these call centers use automated telephone dialing systems and schools could be liable for the violations that these call centers commit. The new regulations also require for-profit schools and their lead generators to obtain specific consenting language from students to be able to call them on their cell phones. More particularly, it must be prior express written consent by which the potential student, in writing, has affirmatively consented in a clear manner to be contacted on his/her cell phone. The regulatory amendments do not affect nonprofit schools which continue to be governed by the existing regulations which require that they obtain prior express consent before calling a potential student s cell phone. For-profit schools that do not implement changes are at risk of enforcement actions and lawsuits since most prospective students only provide schools and lead generators with their cellular phone numbers and do not provide the requisite consent to be called. These amendments significantly affect the marketing and recruitment practices of for-profit schools and their lead generators, as well as their compliance obligations. Below is a summary of the new requirements: { ;v1}{ ;v7}{ ;v6} Calls to Cell Phones Recruiting Calls to Cell Phones with a Live Agent or Pre-Recorded Message: The new regulations require that by October 16, 2013, schools must have prior express written consent of past, current and prospective students to initiate recruitment calls to their cell phones. This is different from the current standard which only requires prior express consent which may be oral or even implied when the student provides a cell phone number to a school as a point of contact. When a prerecorded message is transmitted, the messaging platform must contain an automated feature that permits the student to interrupt the message by voice or key-press and

3 automatically be placed on the school s internal do-not-call list. This latter requirement goes into effect on January 14, Non-Recruiting Calls to Cell Phones with a Live Agent or Pre-Recorded Message: The new regulations do not affect these calls. Instead, the current standards apply which require schools to have the prior express consent of past, current and prospective students for non-recruitment calls to cell phones. Calls to Residential Landlines Recruiting Calls to Residential Landlines with a Live Agent: The new regulations do not restrict recruitment calls to residential numbers when a live agent will be used (note that do-not-call restrictions apply). Non-Recruiting Calls to Residential Landlines with a Live Agent: The regulations do not restrict these calls. Recruiting Calls to Residential Landlines with Pre-Recorded Messages: The new regulations require that by October 16, 2013, schools must have prior express written consent of past, current and prospective students to initiate prerecorded recruitment calls to their landlines. Although these calls have been restricted since 1991, the new regulations eliminate the exception which permits the transmission of prerecorded recruitment calls to many past and present students as well as those students who inquired into the school s programs. The messaging platform must contain an automated feature that permits the student to interrupt the message by voice or key-press and automatically be placed on the school s internal do-not-call list. Non-Recruiting Calls to Home Telephone Lines with Pre-recorded Messages: The regulations do not restrict these calls. Call Abandonment A call is considered abandoned if it is not connected to a live agent within two seconds of the completion of the called party s greeting. This subject arises when schools or their vendors initiate calls using predictive dialers. The FCC s amended

4 regulations implement new restrictions on abandoned calls. { ;v1}{ ;v7}{ ;v6} Call Abandonment Calculation: Schools may not abandon more than 3% of outbound recruiting calls, measured per 30 days per campaign. The term campaign is now defined as the sale of the same service (i.e. educational program) for the same school. This modification went into effect on November 15, Abandoned Call Recording: When a call is abandoned, the school or its vendor must transmit a non-solicitous message that identifies the school, provides a telephone number, and indicates that the call was initiated for telemarketing purposes. The messaging platform must contain an automated feature that permits the student to interrupt the message by voice or key-press and automatically be placed on the school s internal do-not-call list. This requirement went into effect on January 14, What Do these Amendments Mean for You? Effective immediately, calculate abandoned call percentages on a per day, per campaign basis. No later than January 14, 2013, when a recruiting call is abandoned, the abandoned call message must contain an automated feature that permits the student to interrupt the message by voice or key-press and automatically be placed on the school s internal do-not-call list. Between now and October 16, 2013, formulate and implement strategies to obtain prior express written consent from former, current and prospective students to initiate recruiting calls to their cell phones. Between now and October 16, 2013, formulate and implement strategies to obtain prior express written consent from former, current and prospective students to transmit prerecorded recruiting calls to their landlines.. Cease all recruiting calls to cell phones without prior express written consent no later than October 16, Cease all prerecorded recruiting calls to landlines without prior express written consent no later than October 16, 2013.

5 What Requirements are Unaffected by these Amendments? Must have prior express consent from former, current and prospective students to initiate non-recruiting calls to their cell phones. Must comply with all applicable do-not-call laws for recruiting calls. Mitchell N. Roth, Esquire Roth Doner Jackson, PLC 8200 Greensboro Drive, Suite 820 McLean, Virginia Phone: (703) Fax: (703)