They’re Here: The FCC’s New Regulations Under the TCPA — Now What?
A company with which a consumer has an established business relationship may call for up to 18 months after the consumer's last purchase or. TCPA. The term "established business relationship" for purposes of telephone solicitations means a prior or existing relationship formed by a voluntary two-way . The federal Telephone Consumer Protection Act (TCPA; 47 U.S.C. § ) . from the consumer or (b) an Established Business Relationship (“EBR”) with the consumer. The term EBR includes business relationships where the consumer has.
These Exempt Organizations still may access the registry voluntarily, and do not have to pay a fee for that access. They must, however, submit appropriate certification information to gain access to the registry. Can I use numbers on the registry for any purpose other than preventing telemarketing calls? The registry may not be used for any purpose other than preventing telemarketing calls to the telephone numbers on the registry.
Any entity that accesses the national registry will be required to certify, under penalty of law, that it is accessing the registry solely to comply with the TSR or to prevent calls to numbers on the registry.
Use of the registry for purposes other than those set forth in the certificate could subject you to legal action. How can I access the registry? The registry can be accessed only through the fully automated and secure website at telemarketing. The first time you access the registry, you must set up a profile and provide identifying information about you and your organization.
If you are a telemarketer or service provider accessing the registry on behalf of your seller-clients, you will be required to identify your seller-clients and provide their unique Subscription Account Numbers SANs.
The only consumer information available from the registry is telephone numbers. What information must I provide to access the registry?
If you are accessing the registry on behalf of a seller-client, you also will have to identify that seller-client. How often must I access the registry and remove numbers from my calling list? If you are required to use the registry, you have to synchronize your lists with an updated version of the registry at least every 31 days. How often may I download data from the national registry?
You will be able to access data for those area codes for which you have paid as often as you like during your annual period. However, to protect system integrity, you may download data files from the national registry only once in any hour period. What information can I access from the national registry? The numbers will be sorted and available by area code. Companies will be able to access as many area codes as desired and paid forby selecting, for example, all area codes within a certain state.
Of course, companies also will be able to access the entire national registry. Do I need to pay for area codes that change split? If you have subscribed to all area codes the Global list you will not be required to pay for the new area code.
May I check just a few numbers at a time to see if they are registered? Companies that have provided the required identification information and certification, and paid the appropriate fee there is no fee to subscribe to five or fewer area codes will be allowed to check a small number of telephone numbers 10 or less at a time via interactive Internet pages. This will permit small volume callers to comply with the do not call requirements of the TSR without having to download a potentially large list of all registered telephone numbers within a particular area.
Registering and Subscribing to the Registry When registering, I am asked to select from three Organization Functions. What are these functions and which one should I select?
Q&A for Telemarketers & Sellers About DNC Provisions in TSR | Federal Trade Commission
A Seller also may be a Telemarketer, if it is calling on its own behalf, or if it retains one or more Telemarketers to place calls for it. A Seller may direct a Telemarketer to complete the online subscription process for it, but the Seller must have its own subscription and SAN, separate from the Telemarketer's subscription and SAN. Any applicable fees should be paid by the Seller, or by the Telemarketer on that Seller's behalf.
The Telemarketer may use the data it downloads only for that Seller. Telemarketers should understand that every Seller must have its own subscription to the Registry. At the direction of a Seller, a Telemarketer may complete the online subscription process and obtain a SAN for the Seller. However, a Telemarketer may not use Registry data to place calls on behalf of more than one Seller unless each Seller has its own subscription and a SAN.
That is, a Telemarketer cannot purchase the list once and then provide the data to all of its Clients who have not paid the appropriate fees to access the Registry.
Q&A for Telemarketers & Sellers About DNC Provisions in TSR
Any applicable fees should be paid by the client, or by the Service Provider on that client's behalf. The Service Provider may use the data it downloads only for that client. Service Providers should understand that every client must have its own subscription to the Registry. At the direction of a client, a Service Provider may complete the online subscription process and obtain a SAN for the client.
However, a Service Provider may not use Registry data to place calls on behalf of more than one Seller unless each Seller has its own subscription and a SAN. That is, a Service Provider cannot purchase the list once and then provide the data to all of its Clients who have not paid the appropriate fees to access the Registry. You are required to enter your organization's EIN to create a profile, unless you are the sole owner or proprietor of the company or organization.
An EIN has the format nn-nnnnnnn. My company is located outside of the US.
Do I need to have an EIN to complete my profile? International applicants can contact the IRS to apply for their EIN by calling Not a toll-free numberor they can apply online. If you do not have an Employer Identification Number EIN because you are the organization's sole owner or proprietor, then you must enter your Social Security Number to create a profile.
The SSN has the format nnn-nn-nnnn. Why should I subscribe to area codes? The TCPA does not prohibit the use of autodialers to call residential phones. If yes, proceed to 3.
If no, the written consent rules do not apply. However, either verbal or written consent is still required for calls made to mobile phones, even if purely informational in nature. Consent may also be required for residential calls if an exemption does not apply.
If yes, proceed to 4. Written consent is required prior to initiating the telemarketing call! If you obtained prior written consent from the consumer before the new rules, evaluate whether it meets the new requirements. If not, consider scrubbing these telephone numbers from your calling list, obtaining new consents or opt-ins, or calling the consumer without the use of automated technology.
Compliance concerns for calling or brokered lists For businesses affected by the new regulations, compliance requires redesigning websites, creating new signage and documents such as loyalty card applications and business reply cards, implementing new recordkeeping policies, and training and monitoring employees to ensure compliance with the new requirements.
Should any question about the consent arise, the seller has the burden of demonstrating that a clear and conspicuous disclosure was provided, and that unambiguous consent was obtained. Thus, good recordkeeping is crucial, particularly when gathering consent in non-traditional ways. Consent records should be maintained for at least four years. Once new disclosures are in place, companies will have the consent necessary to contact new customers. The more troublesome issue pertains to existing customers.
The FCC has made clear that prior verbal consent to make telemarketing calls to these customers is no longer acceptable. While it is clear that non-written forms of consent will no longer suffice, the FCC did not specifically address whether written forms of consent obtained prior to the new rules will be sufficient.
Prior written consent from legacy or existing customers may not meet all the new requirements —— commonly, the disclosures regarding automated technology and consent not being a condition of purchase. Given the long compliance period, the absence of a grandfather clause, and the fact that the FCC did not directly address the issue, best practices dictate getting new consents from existing customers covering any missing requirements, prior to making automated telemarketing calls.
Obtaining new or revised consents from existing customers using automated technology is not without risk, now that the regulations are in effect. Companies should avoid, if possible, purchasing calling lists from third parties to make automated telemarketing calls.
Once you buy and use a calling list, the list effectively becomes yours. Companies engaging in these practices should take all reasonable measures to ensure that consent has been obtained from the consumer that complies with the current rules. Purchasing lists obtained through double opt-ins are recommended if the double opt-in process can be verified as reliable.
- WHAT IS AN ESTABLISHED BUSINESS RELATIONSHIP (EBR)?
Companies should also consider amending their contractual agreements to include representations and warranties regarding the calling list provided, as well as indemnity provisions in the event a claim is made.