The FCC is presently considering no less than four petitions to clarify, amend, or otherwise make sense of their rules implementing the Telephone Consumer Protection Act, better known as the TCPA. If you are in the customer engagement business, you can help the FCC out of a real mess by supporting these petitions. I’ve highlighted two in particular that deserve your attention.
The Communication Innovators Petition
In June 2012, a group of technology vendors called the Communication Innovators (CI) petitioned the FCC for clarification that modern predictive dialing systems should not be considered "autodialers" under the TCPA. This is because they do not have the "present capacity" or "current ability" to generate, store or dial random or sequential numbers and are used to make non-telemarketing, informational calls to customers. The original petition and many subsequent comments (including one by Varolii) point out the harm caused to both industry and consumers by broadening the definition of autodialer beyond the original intent of Congress.
When the TCPA was enacted back in 1991, congress sought to limit cold call telemarketing by systems programmed to call sequentially or randomly through all possible phone numbers in search of the next unlucky consumer to answer the phone. That's far different than calling a specific list of existing customers to inform them of signficant events in their B2C relationship. But subsequent orders by the FCC have unwisely put such customer service applications into the same category as cold call telemarketing in the eyes of the federal courts hearing TCPA lawsuits. Short of congress rewriting the TCPA (which we also support) the best way to right this wrong is for the FCC to rule in favor of the CI petition.
The Cargo Airline Association Petition
Another petition in front of the FCC was filed by the Cargo Airline Association (CAA) in August 2012, seeking to clarify that prior express consent to receive autodialed and prerecorded non-telemarketing calls and messages (including text messages) under the TCPA can be provided through an intermediary or associated third party. While the CAA is concerned about its members being at risk of TCPA liability if they use any of these assistive technologies to communicate with package addressees regarding upcoming deliveries arranged by a retailer, the same risks apply to passenger airlines and mortgage servicers.
Passenger airlines are required by the Department of Transportation (DOT-OST-2010-0140) to promptly notify passengers of flight delays at the airport, on their website and on their telephone reservation system. Some airlines try to go the extra mile by proactively notifying passengers using interactive voice and SMS text messages. But if a passenger provides their cell phone number as their point of contact, the airline would be violating the FCC's rules implementing the TCPA if they send such a message to a passenger without their "prior express consent". Sounds easy if the ticket is booked on the airline's own website - just add a checkbox for consent to the process. However, getting consent is not so easy if the flight is booked on a third-party travel website or by an independent travel agent over the phone.
Mortgage servicers face a similar dilemma. Under the Consumer Financial Protection Bureau's (CFPB) servicing rules, they are required to make contact with past due borrowers by the 36th day of delinquency, and are strongly encouraged to do so by phone or other forms of electronic communication (including voice and text messages). The CFPB wants servicers to make every possible effort to assist borrowers in avoiding foreclosure by communicating all the loan modification programs the government and mortgage investors have made available. But if the borrower has provided a mobile number (and for 36% of American households, that is the only number they have), in some cases the servicer would be at legal risk if they used automatic dialing technology to make these calls or send these messages. That's because the original lender may have failed to obtain the necessary consent when the loan was issued, and even if they did get consent, its not clear that it passes to a new servicer when a loan is transferred to them.
This is where you come in. Making comments on these petitions is easy and does not need to be done under the guise of a corporation or association (although we encourage that as well). The FCC's Electronic Comment Filing System includes this form for submitting brief comments in their proceeding 02-278 "TCPA Rules Governing Telephone Solicitation". Let them know you think their TCPA rules need to be re-written so companies aren't at risk of big lawsuits when they do the right thing by communicating with their customers, especially when other parts of the government are telling them they must!