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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.

Next Steps

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!

What was missing from the FTC's announcement of the winners of their Robocall Challenge?

Just one word.

MARKETING

Recently the FTC held a press conference to announce the winners of their $50,000 Robocall Challenge, launched October 2012, which asked the public to come up with a technical solution to block illegal robocalls. In his presentation of the awards and in answering subsequent questions from the media, Chuck Howard, acting director of the commission's Consumer Affairs division, never once clarified that what makes a pre-recorded phone message an "illegal robocall" is that they must be attempting to sell a product or service.

In other words, they must be MARKETING calls.

Unfortunately, not only did the acting director fail to provide this clarification, he instead said:

"It's illegal for companies to use any sort of pre-recorded device to place calls to consumers without express written authorization from the consumer."

That's a very disturbing misstatement of the actual rules for companies using pre-recorded messages to communicate time-sensitive information to customers about such things as delayed flights, upcoming appointments, prescription refills, possible credit card fraud or overdue payments. All of these and other customer service messages are in fact legal without requiring the customer to authorize them in writing.

What's more important is that customers want these messages. In a recent survey for the banking industry, we found that 54% of customers want to be immediately notified of irregular account activity or if changes are made to their account information. We also find that customer response rates to pre-recorded messages concerning the status of their application for credit or modification of an existing loan average above 65%, indicating a very high level of acceptance for a form of communication the FTC appears unwilling to acknowledge as beneficial.

While I applaud the enforcement action the FTC recently took to shut down the operations of a scam artist using pre-recorded messages to sell credit card interest rate reductions and extended warranties, I am worried that unless the commission does a better job of educating the public on the law, the call-blocking solutions proposed in response to their challenge will interfere with legitimate forms of customer communication.

That's why I propose the FTC begin using a new phrase to describe the illegal use of recorded messages for soliciting the sale of goods or services:

Robo-MARKETING-Calls

At the same time, they should make a distinction between Robo-MARKETING-Calls and the customer-pleasing, health-promoting, convenience-increasing, fraud-preventing, credit-improving communications they can refer to as:

Interactive-SERVICE-Calls

If they do this every time they address the topic of illegal calls, they will be presenting fair, balanced and accurate information to the public they are protecting, the businesses they are regulating, and the press who might otherwise miss the very important distinction.