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Guide to DNC TCPA List Scrubbing

About this Cell Phone, VoIP, Do Not Call, and TCPA Scrubbing Guide

Although this guide is not legal advice, may not be used as legal advice, or used as evidence in a Court of Law,  it’s based on questions supplied by our clients (people like you), as well as our affiliate partners. Having attended many TCPA/cell scrubbing and Do-Not-Call compliance seminars ourselves, we know how easy it can be to get confused, obfuscated and paralyzed with this stuff. So we’ve designed this guide to help you ask the right questions for your company, and point you in the right compliance direction in your quest for comprehensive, all-inclusive protection against the newly updated cell phone and Do Not Call challenges. This guide is not intended to be a full and exhaustive explanation of the law in any area, nor should it be used to in lieu of the advice of your own competent legal counsel.

(C) Copyright 2010-2015 Do Not Call Protection, LLC All Rights Reserved.
None of this entire content or portions of it may be reproduced, displayed, extracted, included on any Web, Electronic or Printed Media Format without the written, express, prior permission of Do Not Call Protection, LLC.


The 2015 Guide to Cell Phone, VoIP, Do Not Call, and TCPA Scrubbing

What matters most in the universe of cell phone and Do Not Call compliance? It depends who you ask.

  • Lawyers might say, “Management of complaints,” because they see upset consumers trying to lodge complaints at the vendor level, complaints that never reach the company itself. These same complaints are drawing Consumer Financial Protection Bureau (CFPB) attention and fueling the class action lawsuits that are ending up in lawyers’ laps.
  • Debt collectors might say, “It’s how the calls are made, manually or with an automatic telephone dialing system (ATDS).” As attorneys continue to initiate cookie-cutter lawsuits and send threatening letter in their direction, debt collectors will talk about “pause and preview mode,” scripting, recording of the call, and recordkeeping.
  • Your compliance officer might say, “Proper list registrations.” Policies, procedures, and enforcements should be ready and available as soon as they’re needed, your compliance officer will say.
  • Your state’s attorney general might say, “Our sacred state Do Not Call rules,” as they busily enact new cell phone, VoIP, and Do Not Calls restrictions, overriding federal regulations.
  • And if you have been to court, you’ll probably say, “The murky legal interpretations of the cell phone, Do Not Call, and Telephone Consumer Protection Act rules,” as you witness TCPA decisions with the exact same information reversed on appeal or by a lower court.

Where do you start with all this? We could go over the latest cases, and case law, or remind you how complicated this all can be. We could ask you to tune in later, after the Federal Communications Commission responds to the 40 or petitions for declaratory rulings currently in front of it. But we know that, in your daily commitment to help people take advantage of your products or services, you need to reach consumers and businesses now. You don’t have time to wait.

That’s why we created this guide. We thought it might be valuable to shed some light on the current state of Do Not Call and cell phone compliance and what your options are in 2015 for reaching the people you need to reach in as effective and compliant a manner as possible. When it comes to Do Not Call and cell phone compliance, to take compliance seriously, it’s important to ask the right questions. This guide will help you understand what those questions might be.

So take some time to absorb it. We’ve divided this guide into easy-to-read sections, so if one section doesn’t apply to you, skip to one that does!

I hope it will help.

 – Bob


How it All Started

First, a little history.

Congress passed the Telephone Consumer Protection Act (TCPA) in 1991, after the breakup of the Bell System of companies. Following the federal government’s lead, five states subsequently passed “Do Not Call” laws, making it illegal to call consumers in those states under certain conditions.

Nobody paid much attention. These early Do Not Call regulations were ineffective and the registries were difficult to enroll in (consumers had to contact each individual telemarketer). Spurred on by rapid advances in autodialing technology, carpet-bombing consumer phones went mainstream. All you needed was a dialer hooked up to a computer, a good list of phone numbers, and you were off and running.

That all changed in 2003 when the National Do Not Call Registry was born. For the first time, consumers had a central place to register their numbers and prevent all telemarketers from reaching them. And they did; eventually, 75 percent of all consumer telephone numbers were on the National Do Not Call Registry, and 25 percent off all small and medium-sized business numbers were on it (or additional state registries).

This did not, however, stop consumer complaints, as workarounds, loopholes, and exemptions allowed certain telemarketers to continue to reach consumers—especially on their cell phones. Consumers continued to complain, and, after a few years, have been able to get some revenge.


The Do Not Call Consumer’s Revenge

Debt collectors had an exemption of sorts to the Do Not Call laws and, in retrospect, they may have gone a little bit overboard with it, talking down to and generally annoying consumers. Unscrupulous salespeople in the credit card, timeshare, and vacation sales industries weren’t much better.

As a result, several things happened;

  • Consumers became permanently mad about receiving phone calls from companies.
  • The government started to actually listen to the complaints coming from consumers and attempted to shore up oversight.
  • Consumers began to sue telemarketers and debt collectors on their own—successfully—making lots of money (for their attorneys, anyway).
  • Consumers became a bit unrealistic in their solicitation expectations. They expect no calls at all and have a high propensity to complain.
  • Consumers became well educated and shared information in their growing expertise in suing the people that were calling them. Attorneys became equally skilled.
  • The Consumer Financial Protection Bureau was given rights to reinterpret the Telephone Consumer Protection Act to the tune of millions of dollars’ worth of fines to the financial and debt collection industries.

So where does that leave us today? In the eyes of the Consumer Financial Protection Bureau, the Federal Trade Commission, and the FCC, the consumer is (usually) always right. And, the consumer knows it. Class action lawsuits based on the TCPA are up more than 50 percent, and continue to climb. Debt collectors are consolidating, or going out of business altogether. Telesales companies continue to field suits on a regular basis.

The TCPA has ended up in places we never thought possible, with sky-high costs never anticipated, far outstripping any inconvenience to the consumer.


B2B: The Latest Challenges in Do Not Call Compliance and TCPA Law

Prior to Oct. 16, 2013, everyone’s eyes were on business-to-consumer (B2C) calling. Businesses calling other businesses (B2B) were relatively safe. But in October 2013, the Telephone Consumer Protection Act became “consumer agnostic,” meaning, in the eyes of the government, who you are and who you’re calling is irrelevant. If you’re using an automatic dialer, you must comply with the TCPA regulations and refrain from calling any numbers on the federal and state Do Not Call lists.

That means, especially, no calling cell phone numbers using automatic dialers (without written permission). This is a particularly tricky regulation for B2B callers. Modern small businesses and fast-moving tech startups tend to collect contacts from social media sites liked LinkedIn and Twitter, where users are just as likely to post their cell phone numbers as they are their landlines. And, the use of landlines is decreasing, even in the business world.

If your business is B2B, you may be slowly realizing, “Uh oh, We’re subject to these new cell phone calling restrictions, too!” You’re probably having a hard time grasping the severity of the possible legal ramifications, with which your B2C counterparts are already all too familiar.


What B2B Companies are Doing Wrong

Predatory attorneys know B2B tech and software companies are lagging with cell phone calling compliance and are starting to swoop in to grab the easy pickings. Their eyes are especially set on class action certifications. These types of lawsuits are just starting to take hold—and for businesses calling other businesses, things will get worse before they get better.


3 mistakes B2B callers are making:

  • Most B2B companies have no cell phone scrubbing and Do Not Call policies, procedures, and enforcements at all. Cell phone scrubbing just means identifying and archiving all cell phone numbers from a business’s list of contacts. Regular cell phone scrubbing is basic requirement for TCPA compliance.
  • Most B2B companies are not registered as an exempt entity with the National Do Not Call Registry. There are six types of exemption in the National Do Not Call Registry (found online at www.telemarketing.donotcall.gov). One of these is business-to-business calls. These exemptions make it possible to register for free, instead of paying the $17,000 yearly fee. Most B2B companies, however, haven’t bothered to take this step, so they don’t even have a Subscription Authorization Number (SAN), which is an important indicator to government authorities that a business actually does care about the Do Not Call and cell phone calling regulations. Whether you perform cell phone and DNC scrubbing through your own IT department or hire a compliance service provider, you’ll need that SAN.
  • Some B2B companies are not including state Do Not Call lists in their scrubs. State lists are really the new challenge, as states are adding new cell phone regulations all the time, backed up by legislative action. Complicating things further, state laws usually supersede federal laws. Five states (Arizona, Louisiana, New Jersey, Texas, and Wyoming) don’t allow telemarketing calls to cell phones at all (even with hand dialing!), so make sure you double check your state lists.


Your Options in 2015 for Handing Do Not Call and TCPA Compliance

Five wrong ways to do it and one better way

Considering the challenges posed by the increased attention by government groups like the Consumer Financial Protection Bureau, the growing sense of protectiveness consumers have toward their cell phones, and the changes in the TCPA to include B2B calls, what are you options for avoiding lawsuits and fines, keeping consumers from complaining, and maintaining compliance?

Here are a few:


1. Do nothing. Wait for something bad to happen

Believe it or not, doing nothing is a valid option for some companies. Their business model has been so successful and they have been making so much money that they haven’t bothered to keep up with Do Not Call compliance changes. And for some reason they haven’t been caught.

Some TCPA defense attorneys are fine with that. They’ll patiently wait until a huge violation lands in their lap. They make more money that way!

There is a bright side to this approach: You save money on DNC state and federal registrations. You don’t have to worry about what kind of auto-assisted dialer you have. You don’t have to train calling associates in proper DNC etiquette. But, consider the down side: If things go bad, they tend to go bad in a hurry. And the days of a slap on the wrist are over. You could get hit with a CFPB audit, or worse, a class action certification. The latter can put you out of business.


2. Handle Do Not Call compliance in-house

“Those undated existing business relationship leads are around here someplace—but I think the previous IT guy encrypted them before he left.”

That’s not something you want to hear when your state attorney general, the FTC, the FCC, or a lawsuit-threatening attorney comes calling. The problem is, if your DNC policies, procedures, and enforcements aren’t available in the timeframe and format required by the government, you’re guilty.

Handling DNC compliance in-house is possible, but it’s risky, not to mention time- and work-intensive. You have get a hold of the national and all state Do Not Call registrations and lists yourself, find a cell phone list that’s (hopefully) up to date, hand the whole thing off to your IT guy and hope he and your DNC policies are available when you’re asked for them.

“But we have somebody handling that in the company, I think.”

You think? What are they scrubbing against, exactly? How often are they updating? Are they including cell phones numbers? VoIP? Are they looking for frequent litigants who are just looking for violations, suing time and time again? Not only do many of the same consumers sue companies for DNC and TCPA violations, but many companies are sued multiple times by the same people. And what about right party verifications for relationship calling? According to the courts, you’re responsible at the time of the call.

Remember: If you try to handle your DNC compliance responsibilities on your own, you’re just that, on your own! You have no shared liability exposure. Should you end up in court, you’ll be singly responsible for proving you did your best to adhere to the legal nuances of the Do Not Call laws, including recordkeeping, day-in and day-out procedures, campaign filings, storage, and recordings where necessary. And you’ll be appearing in a court that may not think much of telemarketing and professional phone salespeople in the first place. After all, judges are human. They’ve been interrupted at dinnertime too!

Many companies have paid dearly for walking that minefield on their own. AT&T couldn’t do it. American Express couldn’t do it. DirectTV couldn’t do it. What makes you think you can?


3. Let your vendors handle Do-Not-Call compliance

Your listing broker, data company, or your fulfillment house may offer to handle your DNC chores, but will they really be there for you when you need them?

The problem with handing Do Not Call with these vendors is that you’ll still be responsible for compliance oversight. You can’t ask another company to handle what you can’t. Many vendors will take on the DNC responsibility just to keep your main account; they have no intention of sticking around should something go wrong.

We’ve seen vendors take on DNC chores while making no registration efforts on the part of their clients. As this guide discussed earlier, you can’t even begin to comply with the Do Not Call laws without first properly registering with the various required government and state agencies. What’s worse is that these agencies see this as a deliberate effort to thwart their authority – and when they feel that, they tend to come on stronger with assessment violations.


4. If you’re with a B2B company, just say you didn’t know. You thought you were exempt

After all, the law is so new, and you were exempt in the past. It wasn’t until October 2013 that you even had to scrub for cell phone numbers if your sales team was using your usual auto-assisted dialing equipment.

But the “I didn’t know” excuse isn’t going to fly for much longer. As predatory attorneys exhaust their B2C options, B2B tech and software companies are becoming the low hanging fruit on the money tree.

“Just one out of 100 B2B companies I talk with are even aware they need to scrub cells and are subject to the DNC laws when calling small businesses,” says leading TCPA attorney Eric Allen “They have no idea it also makes sense to scrub against the national registry as an exempt entity.”


5. You can try your luck with a great excuse

Over the years, we’ve heard some doozies. There’s never a shortage of high-quality reality entertainment in the Do Not Call arena:

“It takes a long time to get anything done around here, you know.”

“We just haven’t gotten down to the nub of it yet.”

“We haven’t had any problems in the past.”

“If it was an issue, I’m sure somebody would have brought it up by now.”

“Look, if we were to follow that DNC stuff we’d go out of business.”

“We’ve looked into it, but we’ll never get our arms around it. It’s constantly changing.

“All of our centers are off-shore anyway, so how can they sue us?

Do any of these sound familiar? Do you think they’re strong enough excuses to risk your entire business on?


6. Partner with a certified Do Not Call law compliance service provider

When you work with a certified Do Not Call law compliance service provider, you’re getting a partner for whom DNC compliance is all they do. They shouldn’t make mistakes.

And, if you have to start from the ground up, a robust compliance base is a great place to start as you grow. Many of the largest companies are finding company-wide compliance – throughout each department – is the only way to create sustainable, “customer is king” ongoing customer engagement, which is so important for upselling and relationship nurturing today.

I realize I’m on this side of the fence, but really, this is one of those no-brainer outsourcing opportunities for your company. Even if you already have a robust Do Not Call program in place, at least get your certified updated lists from a DNC specialist to back up your in-place system.

Sure you can do Do Not Call compliance in-house, but as the general counsel for the second largest teleservices company in the world said to me, “Isn’t that like saying ‘We can design a word processor’ when Microsoft Word is already available?”


A word about VoIP, multiple litigants, and right-party verifications

We’ve seen the first successful consumer voice over IP (VoIP) lawsuit. The consumer in this case was paying a fraction of a penny to receive inbound calls, and according to the TCPA, “…any call for which the third party pays” is off limits. So you’ll want to make sure your vendor or scrubbing solution includes VoIP.

And multiple litigants are on the rise, as well. These are the people who have a history of suing over and over again—so you’ll want to include that. And don’t forget to make right-party verifications in relationship calling—at the time of the call. You’re responsible for making sure it’s the right person.

Although these are not downloadable Do Not Call lists from federal and state agencies, they tend to be problematic in today’s quest for complete compliance.


Who’s most likely to complain?

Probably the MOST likely people to complain are consumers who are on a Do Not Call list, but get called nonetheless. These are followed by consumers whose complaints are “stuck” in your call center and never get resolved. Close behind them are the consumers who want to remove the consent-to-call they granted your company, and you won’t let them; you keep calling!

Keep in mind that 90 percent of Do Not Call complaints could be eliminated by listening to the consumer, acknowledging what they’re saying, apologizing for the call – and following through with number removal, or whatever steps it takes to rectify the situation!


Our Perspective: The Advantages of Working with a Certified Do Not Call Law Compliance Service Provider

Compliance, as it stands today, is the key to sustainable customer acquisition and ongoing interaction. Without prudent and proper compliance representations, your company’s long-term prospects can be less than robust!

The key is to work with a provider that can grow with you. You may have straightforward Do Not Call and TCPA scrubbing procedures today, but as your business grows, your compliance requirements can become significantly more complex. It’s important to have enterprise-wide compliance capabilities, from the ground up, with different departments all on the same client outreach page.

As companies get bigger, departments tend to separate and lose track of each other. Sales doesn’t think much of marketing for example—and both don’t think much of the lawyers. Lawyers tend to say “no” to marketing efforts to interact with consumers through all channels – which is key in today’s consumer-centric world.

Reuters recently reported that the best outside company to help with ongoing customer preference management and engagement is a top compliance provider. It’s the only way to “push the envelope” through multiple updates, offers, and feedback that’s listened to and responded to.

With a top compliance provider, legal has a partner, which allows them to say “yes” more often to marketing – which in turn provides more support for sales and customer service. IT is happy to implement the latest customer outreach and incoming initiatives.

And the company makes more money.


What We Do

We help companies comply with the consumer and business Do-Not-Call Laws. This includes the Telephone Consumer Protection Act, which limits the ways in which a business can call cell phones. Various government agencies and individuals are levying millions in fines and class action court cases for company violations of these laws. Businesses facing these increased call prohibitions need to protect themselves. Debt collectors are consolidating or going out of business. Telemarketers face increased call prohibitions. Agencies involved in these litigations include the Consumer Financial Protection Bureau, FTC, FCC, state attorneys general, and disgruntled individuals.