Short Message Service (SMS)

2010 Legislative Expectations?
as More of the Same for the Contact Center Industry

By Tim Searcy
CEO, American Teleservices Association

The standard cast of legislative "characters" remains active at both the state and federal levels of lawmaking. Granted, with state houses adjourning for the year, many of their bill drafts died along with the end of the session. This is a common event. If bills do not get voted into law or officially "carried over" into the next session, it is death by adjournment. This does not, however, prevent the same issues from arising in the next state legislative session, and we have seen this exact "rise from the ashes" occur time and time again. Of course the policy issues we care about are subject to change as legislators and regulators continue to determine the direct marketing rules and regulations that permit our industry to communicate with its customers. Here are two topics that should be on your radar for this year:

Business to Business DNC Registries

We have watched a number of states propose legislation that would permit businesses to register themselves on the existing Do Not Call (DNC) state registries. The subtext of such rule making is fundamentally flawed. Consider the fact that our economy is in dire straits, and being a free market economy, it will be direct commerce that will pull us out of the doldrums. If businesses are allowed to remove themselves from the channels of commerce, then business trade will be severely hampered.

The American Teleservices Association (ATA) has managed to kill these bills in some states, however, states like Pennsylvania (PA Senate Bill 423), Tennessee (TN Senate Bill 1232) and Oklahoma (OK House Bill 2050) continue down the path of allowing businesses to register for their state DNC list. Using not so clever language, these state bills offer to allow businesses to refer to themselves as "consumers." This definition lets them join under the prior DNC scheme.

So let’s say that one of these bills becomes law, or another state reintroduces the concept and fast tracks it to enforcement. What is the trade off? If a business can exempt itself from the chain of commerce, should it then be restricted from outbound sales efforts? Can you imagine: our company enjoys a quiet day of no sales calls from outside vendors, yet busily has our sales reps calling every business in our sector trying to drum up new accounts?

Additionally, who is ultimately responsible for listing the business on the DNC? Well, for current consumers, it is the "owner" of the telephone number. Therefore, it would be required that the owner of a business be the sole decision maker for business DNC registration. Under this legislative scenario, the decision could be made by anyone in the firm, with or without proper authority.

Text Messaging and Cellular

Often coupled with fax solicitation restriction bills, cellular DNC or DNC without an existing business relationship (when we’re lucky enough to have it defined) gets in the way of the consumer who readily provides this number in all sorts of scenarios. From a regulatory perspective, it is illegal to contact cellular phones using a predictive dialer without prior written consent. This illuminates how difficult it is to establish consent with our customers for ongoing communication on cell phones or landlines. It makes more sense to create a national standard for what constitutes a reasonable "business relationship" permitting us to return calls without fear of complying with the myriad of different state rules permitting us to return a call or not. Veiled in many bills as "consent," the reality is that if a consumer provides us a number, we should be able to return the call. That seems a base logic for permission to call regardless of cellular or not.

Texting is a whole different subject. Movement is underway to strictly prohibit unauthorized texting to cell phones. This will also pose a serious express written consent opportunity which marketers will have to continue to create opportunities in bill language to preserve.

Legislators often believe that anything worth doing is worth overdoing. For this reason, we see a lot of redundancy even within an individual state’s bills. For instance, in the New York Assembly, there are currently four bills covering virtually the same DNFax area. NY Assembly Bills 941, 3251, 3614 and 4157 are nearly identical in intent, all trying to accomplish the same thing simultaneously. None passed during this past legislative session, yet all are carried over into 2010.

It is impossible to say what the federal efforts will be in 2010. With two active wars, healthcare, budget concerns, the economy, and an appetite for greater tax revenues, our issues may be secondary. We can only hope to be so lucky. If we did not have a federal fight in addition to the state issues enumerated above, the ATA could focus its efforts on the its Self-Regulatory Organization (ATA-SRO) adoption and on securing a response from the Federal Communications Commission to our petition for exclusive federal jurisdiction. In the meantime, please watch this column for regulatory and legislative updates, and I can always be reached at tim@ataconnect.org.

Until next time, I am on the line.

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