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Your Top 10 TCPA Questions Answered

  1. ©2015 Experian Information Solutions, Inc. All rights reserved. Experian and the marks used herein are service marks or registered trademarks of Experian Information Solutions, Inc. Other product and company names mentioned herein are the trademarks of their respective owners. No part of this copyrighted work may be reproduced, modified, or distributed in any form or manner without the prior written permission of Experian. Experian Public. This information is provided for informational purposes only and should not be relied upon as legal advice. If you have questions about the information contained herein, you should consult your own legal and compliance departments. Your Top 10 TCPA Questions Answered
  2. 2 Speakers Paul DeSaulniers, Senior Director of Marketing As Senior Director of Collections and Scoring at Experian, Paul DeSaulniers is responsible for leading the Collections and Scoring businesses. He focuses on utilizing data assets to solve clients' challenges and developing specific strategies to effectively integrate scoring into clients' decisioning systems. DeSaulniers brings strong product and industry knowledge with his experience in the financial service industry, data businesses as well as a deep understanding of risk management and credit policy. Bill Butler, Senior Product Manager Bill Butler is a Product Manager for Experian Information Solutions consumer collection product suite. He currently manages Experian’s FirstSweep, Experian’s collections compliance product; and both TrueTrace and MetroNet®, Experian’s contact and skip locating services. Bill is also responsible for formulating and executing product strategies. Jeremy Hancock, Director of Government Affairs and Public Policy Jeremy is Director of Government Affairs and Public Policy and represents Experian before Congress, federal agencies and state policymakers. He specializes in issues related to credit reporting, identity theft, marketing, e-commerce and privacy. Jeremy testifies regularly before state legislatures and speaks to employee and client groups about how the political and policy environment in Washington affects the information economy. Prior to Experian, Jeremy worked in legislative and regulatory affairs for Charles Schwab, where he managed a number of legislative issues, including banking and tax policy, and was responsible for public policy strategy.
  3. 3 Market Challenges Regulatory Economic Social/Customer Technology  Multiple regulators: CFPB, FCC, FTC  Regulators may be evaluating your contact management process  Consumer disputes are increasing by over 40% on average the last three years  Increased legal and compliance fees  Potential class action litigation , settlements, and lawsuits  Single instance fines range from $500 to $1,500 per dial  Digital customer needs  Customer treatment strategies are essential  Customer retention  Single customer, multiple accounts  Data integration to meet all of your contact needs  Seamless workflow process
  4. 4 The Challenges in Locating Consumers The Dynamic Nature of Data Consumer data is both always changing and growing, and people are becoming even more difficult to track. Collectors need certain safeguards in place to ensure regulatory compliance with the accuracy, security and delivery of their data. Consumer information noted on an annual basis. Best Practices  Identify landline and cell phones for TCPA compliance with dialer campaigns  Focus on right and wrong party contact to improve Service Representative performance  Score phones or apply cutoff scores based on the confidence of the number or match
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  6. 6 TCPA non-compliance Penalties, fines, class action litigation The Telephone Consumer Protection Act (TCPA) has been enforced by the Federal Communications Commission (FCC) since 1991  Protections and restrictions on the use of cell phones  Penalties and fines for non-compliance The Federal Communications Commission announced new ruling on July 10, 2015:  Clarification on the definition of an “auto-dialer”  Consent to call  Reassignment of cell phone numbers  New requirement for “one call” without liability Penalty for non-compliance:  Penalties or fines in thousands or millions of dollars  Class action litigation  Individual cases for $500 to $1,500 per dial
  7. 7 Bipartisan Budget Act of 2015 New TCPA Exemptions The Bipartisan Budget Act of 2015 (effective November 2, 2015):  Amends the Telephone Consumer Protection Act (TCPA)  Creates exemptions for calls made to cellular and residential telephone numbers for collection debts owed to or guaranteed by the US Government Key changes:  Prior express consent was required for calls made by an auto dialer or prerecorded voice system; and now these calls may be made solely pursuant to the collection of a debt owed to or guaranteed by the US Government • Includes residential (landline) and cellular phones • Servicers and collectors of government debt are included in the exemption
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  9. 9 Does TCPA apply to landline (residential) and VOIP, as well as cell phones? Your Top 10 TCPA Questions Answered QUESTION 1
  10. 10 The TCPA directly addresses contacting consumers via a landline phone or cell phone through the use of autodialing technology or prerecorded voice messages. However, the use of VOIP technology is not as clear and compliance obligations have been a focus of litigation. The law broadly restricts the use of autodialers to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service which the called party is charged for the call…” As a result, court decisions have highlighted the issue that VOIP services charge for calls and could result in TCPA violations. Your Top 10 TCPA Questions Answered ANSWER 1
  11. 11 What is considered an “auto dialer”? Your Top 10 TCPA Questions Answered QUESTION 2
  12. 12 The TCPA defines an autodialer as “equipment which has the capacity to – (A) store or produce telephone numbers to be called, using a random or sequential number generator; and (B) dial such numbers.” Often the question of interpretation focuses on the subject of capacity. The Federal Communications Commission (FCC) has said that it believes that Congress intended a broad definition of the term and addressed the issue in 2003 and 2008, stating that autodialers only need to have the capacity to dial random and sequential numbers. In the 2015 Declaratory Ruling, the FCC stated that capacity is based upon a piece of equipment’s potential ability, rather than present ability, to become an autodialer, even if it requires software to do so. The FCC has acknowledged there are outer limits to the capacity of equipment to be an autodialer. As a result, the definition of autodialer does not extend to every piece of technology. Ultimately, the definition will come down to a question of legal interpretation and best practices. Your Top 10 TCPA Questions Answered ANSWER 2
  13. 13 What does “express” consent mean; and does it carry over to servicers, collection agencies or debt buyers? Your Top 10 TCPA Questions Answered QUESTION 3
  14. 14 The TCPA requires prior express consent, rather than implied, but distinguishes when it must be oral or written. Broadly, the TCPA prohibits two actions using automatic dialing technology without prior express consent: 1) making telemarking calls and 2) making any calls to a wireless phone number. In February 2012, the FCC issued a new order, to define prior express consent as requiring “written consent” for telemarketing calls. In the same order, the FCC did make clear that debt collections calls were not considered telemarketing calls and would not have to meet the new prior express “written consent.” The FCC has stated that express consent for calls to wireless devices may be either written or oral. With regard to how consent is used among services, collection agencies, and debt buyers, the FCC partially addressed the issue in 2008. According to the Order, “autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” As such, it has been interpreted that providing a creditor with a wireless number during a transaction that creates a debt meets the prior express consent requirement. Still, the FCC has expressed that an organization bears the burden of proof to show it obtained prior express consent and actions should analyzed by legal and compliance staff. Your Top 10 TCPA Questions Answered ANSWER 3
  15. 15 Your Top 10 TCPA Questions Answered QUESTION 4 What is a ported phone and does it apply to TCPA?
  16. 16 A ported phone is when a consumer takes their landline and “ports it” to a cell phone. Local number portability (LNP) for fixed lines, and full mobile number portability (FMNP) for mobile phone lines, refers to the ability of a "customer of record" of an existing fixed-line or mobile telephone number assigned by a local exchange carrier (LEC) to reassign the number to another carrier ("Service Provider Portability"), move it to another location ("Geographic Portability"), or change the type of service ("Service Portability"). Your Top 10 TCPA Questions Answered ANSWER 4
  17. 17 Is anyone exempt from TCPA? Your Top 10 TCPA Questions Answered QUESTION 5
  18. 18 The TCPA does not distinguish compliance among organizations and, as such, all organizations should examine whether they must comply with the statute. The TCPA does provide the FCC with the authority to exempt calls if they meet certain requirements, which include that the calls are not for a commercial purpose, they do not adversely affect privacy rights, and are not subject to a wireless charge. In response to petitions from the American Association of Healthcare Administrative Management and the American Bankers Association earlier this year, the FCC used this power to exempt certain “messages about time-sensitive financial and healthcare issues.” To qualify for the exemption, the communications must follow the existing obligation within the TCPA. Your Top 10 TCPA Questions Answered ANSWER 5
  19. 19 What is the best way to verify phones and how often should this be done? Your Top 10 TCPA Questions Answered QUESTION 6
  20. 20 It is best to first verify phone information directly with the phone carriers. Experian has access to and will process all phones submitted for verification to over 4,500 phone carriers to identify phone ownership. The frequency should be based on your own legal review; but many clients have shared at a minimum, cell phones should be identified and processed for verification with the carriers to determine ownership prior to initiating a dialer campaign. Your Top 10 TCPA Questions Answered ANSWER 6
  21. 21 Does the “one call” rule allow us to call the consumer until I get a hold of them? Your Top 10 TCPA Questions Answered QUESTION 7
  22. 22 The 2015 Order provides a safe harbor for companies to place only one call to a reassigned number without obtaining the new owner’s prior consent to receive such autodialed calls. The safe harbor does not require a consumer to answer the phone or inform the caller of the reassigned number. Additional calls would be subject to the TCPA. However, if a company has actual knowledge of the reassignment, it may not make this single call. Through the Order, the FCC includes a number of guidelines to help companies ensure they do not make unwanted calls, including procedures for recording wrong numbers, processes for updating information, and establishing compliance procedures. Your Top 10 TCPA Questions Answered ANSWER 7
  23. 23 What technology is available to consumers to protect their information or file lawsuits? Your Top 10 TCPA Questions Answered QUESTION 8
  24. 24 Consumers are aware and engaged in activity supporting their rights and consumer protections. There are several smart phone applications now that will allow consumers to block numbers. In turn, those numbers are tracked by the caller and call frequencies to support potential litigation or class action lawsuits where TCPA has been violated. Your Top 10 TCPA Questions Answered ANSWER 8
  25. 25 What can be done about prepaid phones or family plans? Your Top 10 TCPA Questions Answered QUESTION 9
  26. 26 The phone carriers will store phone owner and individual subscriber information. However, subscriber information will not always be available for prepaid phones or family plans. In addition to the carrier information, Experian has access to information on over 220 million consumers to identify additional phone information associated with the consumer. Your Top 10 TCPA Questions Answered ANSWER 9
  27. 27 What happens if consumers say the phone is “not theirs” to avoid confrontation; and if that number is still valid, how can we handle this? Your Top 10 TCPA Questions Answered QUESTION 10
  28. 28 First, check with your own operational compliance and company procedures. If you have verified with the phone company that it is the consumers phone number and you have consent to call the phone you may not want to take the phone out of circulation. Your Top 10 TCPA Questions Answered ANSWER 10
  29. 29 • Can you clarify when written consent is required? For cell phones? For landlines? Broadly, the TCPA prohibits two actions using automatic dialing technology without prior express consent: 1) making telemarking calls and 2) making any calls to a wireless phone number. According to the FCC 2015 Order, “if the call includes or introduces an advertisement or constitutes telemarketing, consent must be in writing. If an autodialed or prerecorded call to a wireless number is not for such purposes, the consent may be oral or written.” • If multiple product relationships exist, does express consent carry across product lines and conversely, must opt out automatically be applied across the enterprise? Because of the complex nature of the TCPA, requirements for organizational structures should be discussed with legal counsel to ensure proper compliance. Console Questions from Webinar Q&A ?
  30. 30 • Based on data you've obtained from the phone companies, what is the average (or typical amount of) time it takes for a customer to have their phone number reassigned to another party? Reassignment varies by carrier depending on their own processes and procedures. It depends on many factors, we have seen this change in a few days to months. • What if you do not use an autodialer? How does TCPA apply to me? Beyond autodialing prohibitions, the TCPA also includes broader consumer protections, such as obligations for the National Do Not Call Registry and requirements for telemarketing calls. Organizations should consult with legal counsel to determine whether dialing technology would be considered an autodialer and any further compliance obligations. Console Questions from Webinar Q&A ?
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  32. 32 Best Practices: Evaluating Data Sources Where does contact data come from?  Directory assistance data (411 / landline)  Consumer opt-in sources (social media / surveys)  Credit header data  50+% of the consumers use a wireless phone as their primary contact with the bureau; and a great source for the consumer’s best address  Percentage fluctuates by demographic  Alternative sources such as property management and payday lending header files  National Change of Address (NCOA)
  33. 33 How does vendor matching work?  Data aggregators must match on name and address  SSN is not included in the traditional directory assistance and opt-in sources  Various credit reporting agencies can match in the name, address, plus the reported SSN(s) Best Practices: Evaluating Matching Logic
  34. 34 Best Practices: Defining “Verification” How do vendors define “verification”?  100% verification against the phone company  Blended verification against data sources and the phone company  100% verification against aggregated data sources
  35. 35 How do others measure success?  Right Party Contact rate at the “account level”  One or more phones or addresses belongs to the consumer  No more “shotgun” approach to identifying and using phones  Wrong Party Contact rate—false positive matches  Phone Scoring or address ranking can be used to support custom contact strategies  Unique contact data is identified when no other source is available  How reliable is the unique data?  Collection performance  How much have you collected and how many dials or letters were required? Best Practices: Measuring Success
  36. 36 Experian’s Investment to Support TCPA Experian is continuously investing in contact management and compliance  Phone Type Identification (AKA Device ID or Line Type)  Portability  Telephone Verification  Telephone Append  Telephone Suppression  Telephone Confidence Scores & Filtering  Contact Triggers  Improved Customer Experience  Channel Preference  Residential and Business phone numbers
  37. 37 Final challenge: Be compliant Review your contact management system and collection processes for compliance:  Do you have a seamless process to manage your contact strategy throughout the customer life cycle?  Do you scrub often for updated or verified information?  Are there gaps in identifying or tracking cell phones?  Do you have a process to identify ported phones?  When and how often do you dial cell phones?
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