Many list brokers, lead providers and data suppliers on the internet claim to have the new TCPA Laws safely handled for their clients. What you need to know, how to do it, and be protected. Some of the advice seems a little ahh farfetched - and downright impractical. Many TCPA Lawyers are even confused, as they spar over the October 16th, 2013 TCPA cell updates on our Webinars. And now, after the FCC Declaratory Ruling in June, the consumer has even more call prohibition rights. The kind that can put you out of business if you aren't paying attention.
Update April 15th, 2016: Because of the uptick in prosecutions around a lead brokers inability to effectively trace lead history in any legally meaniful way, we've included the above video "Lead Identity Provider Outsmarts TCPA". This technology allows for complete video history of a lead, without storing and archiving randomly accessible data - which could violate privacy and data collection laws. (The encrypted hashed data is matched to the actual lead event via inquiry only.) This appears to be the missing compliance link with companies needing to reach out through purchased leads. Pretty cool! - Bob
The truth about Lead Lists - Click Video
This video is for informational purposes. Be sure to consult your attorney for questions specific to your business. (Special thanks to Christine Reilly for the content in this video - Partner and Cochair of the TCPA Compliance and Class Action Defense practice of Manatt Phelps and Phillips)
So it’s dangerous to have a list broker as your primary source of compliance preservation. Keep in mind, lead providers want to sell you leads. Asking a lead provider about compliance is like asking a Ford dealer, "What’s the best car?" Yup - when you're broken down on the side of the road, the salesperson will be long gone.
9 Nutty Things a Lead List Compiler will tell you about DNC TCPA Compliance:
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“We’ve hired an attorney to ensure that our products are 100% safe.”
Huh? How can an attorney ensure you’re 100% safe? Will he pay the fines? Attorneys don’t provide compliance through day to day background procedures and backup that information with proper archiving. They offer advice.
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“Be smart and be cautious. If you’re too aggressive... ultimately, anything that goes wrong will fall on you.”
Who decides what's too aggressive - the Attorney that was hired to be 100% compliant? Are you telling me you're not responsible at all Mr. Broker?
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“The national Do Not Call list protects the numbers of individuals who added themselves to the list. You can read about it here.”
Huh? I don't want to read about it – I want to know if scrubbing algorithms cover constantly changing state laws. And I want a get-out-of-jail-free scrubbing and archiving procedures card that will survive legal scrutiny.
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“It is illegal to use an automatic telephone dialing system to call any cell phone without proper written consent. Our systems are 100% compliant.”
Ahh – Courts go back and forth all the time on the definition of an ATDS vs. manual dialer. And have reversed many decisions. The latest FCC update: "present capacity" doesn't matter anymore. Now “future capacity” rules - so who knows. And who certifies your systems as being 100% compliant anyway, if, as you say, "anything that goes wrong will fall on me if I'm too aggressive?"
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“Remember that state telemarketing rules vary widely and you can read about them here.”
Again, not sure learning about state rules helps algorithms automatically identify and archive potential problem state numbers. We see a ton of litigation on state mini-TCPA statutes now, and it’s getting worse as they test out how much money they can bring in.
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“Thankfully, you can still send pre-recorded messages to business landlines.”
Ahh – a minefield of problems now calling business lines that turn out to be cell phone numbers subject to cell ownership rules. And if a business line is on the DNC list, according to the FTC, they don't lose consumer protections under the consumer laws.
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“Be aware that certain states prohibit autodialing altogether. Read up on other important federal and state robocall rules here.”
Really? Read up on robocall rules? I'd just like that handled.
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“It’s an understatement to say that these laws present a confusing situation for lead-driven marketers and sales teams.”
For sure, sending clients into this maze with “wish and a prayer” advice from a lead broker is potential TCPA suicide – no?
What to do?
Here’s a sample of an easy number checking tool to run your smaller purchased lists through. Something that will have the day to day records required to help keep you out of TCPA trouble. Everything archived and dated by a top DNC Compliance provider, ready in the timeframe and format required should you have a legal issue:
“But Bob – I love my list vendor.”
If you’re working with a favorite listing company or fulfillment house who claims to provide TCPA compliance – again, it's O.K. to go ahead with your own outside compliance insurance policy. Just let them know you’d like your data to make an extra stop at a separate DNC data repository before delivery to you.
TCPA Telemarketing Attorney Eric Allen agrees, “This is all they do. And they do it better than you can.” With a certified Do Not Call Law Compliance Service Provider, your data just makes an additional background stop in a central repository before each campaign becomes active. Campaigns are available in the timeframe and format the FTC, FCC, State AG’s or private right of action groups demand should they be needed. Like an extra layer of TCPA protection. A “Get out of jail free” card if you like.
Don’t lull yourself into complacency on calling safety today. If you're not including a certified Do Not Call Law Compliance Service Provider into your everyday contact and list scrubbing procedures - you're probably not compliant!
For more nutty things a list broker can tell you, call me at 561-317-3001 - Bob
