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Contradictory Rulings Leave Some Outbound Telemarketers Confused About TCPA Rules

While no one doubts the value of outbound calling, whether it’s outbound telemarketing or debt collection, thanks to legislation, specifically the Telephone Consumer Protection Act (TCPA) and its more recent Declaratory Rulings, it has become something of a minefield that companies must tip-toe through in order not to break any rules.

Unfortunately, some rules are rather ambiguous, and are sometimes downright contradictory, particularly when it comes to expressed consent, or permission by a consumer to allow a company to call a mobile phone, what constitutes “consent” to call and how liable a company is if a third-party violates the TCPA.

In a recent court case that tested the limits of the TCPA, Mais v. Gulf Coast Collection Bureau, et al., a U.S. district court judge in Florida found in favor of the debt collector when it came to implied consent. The plaintiff had been seeking damages in connection with a series of telephone calls made to his mobile phone by Gulf Coast, an independent debt collector, using a predictive dialer (traditionally a practice that violates the TCPA). Gulf Coast was operating on behalf of a radiology services provider to whom the plaintiff owed a small amount of money.  

According to court documents, the plaintiff’s spouse had provided his cell phone number to the radiology provider during the admissions process. As part of that process, she had acknowledged and received a copy of the hospital’s privacy practices, which included a disclosure that the hospital, physicians or other health professionals might release a patient’s health care information “for purposes of treatment, payment or healthcare operations,” and might use and disclose such information to “bill and collect payment from the patient, his insurance company or a third party payor.” According to the judge, this was all the consent Gulf Coast required.

While this is good news for companies worrying about “implied consent,” or whether a spouse can consent on behalf of a patient, it gets confusing when it comes to liability when third parties violate the TCPA. In this case, the judge ruled in favor of the creditors, indicating they were not bound by a previous FCC (News - Alert) order regarding third parties. 

“[w]hile Brown [one Gulf Coast defendant] is the person who allegedly ‘authorized the use of Gulf Coast’s dialer,’ . . . there is no evidence of plainly violative conduct by Brown personally; indeed, there is no evidence that he had anything personally to do with the calls made to Plaintiff or any putative class member. Instead the evidence shows that he, as the person responsible, attempted to implement policies that conformed with the TCPA.”

This is good news, right? Not necessarily…not in light of a recent Declaratory Ruling from the FCC. On May 9, 2013, the federal agency released a special ruling that specifically addresses some often-disputed aspects of the TCPA, one of them regarding third parties. Based on two federal court rulings, the new Declaratory Ruling clarifies that, under the FCC’s rules, while a seller of goods or services does not “initiate” telemarketing calls made by a third-party telemarketer, the seller may nevertheless be held vicariously liable for telemarketing calls made on its behalf, according to the agency.

The message here is that gaining permission to make outbound calls via methods like calling mobile phones or using automated outbound calling “robocalls” is easier than you may have thought – it can even be granted by a secondary party – but companies may indeed be liable for anything third-party providers do. While clarification rulings normally make things easier, these rulings seem to further muddy the waters. Are companies liable on behalf of third parties or not?

In light of the confusing information, how do you ensure your company remains within the bounds of the TCPA?

Be very specific when obtaining consent. Get it in writing to ensure that you are not violating the TCPA when it comes to outbound calling, and be specific about the channel you intend to use, such as calls to mobile phones or automated outbound calling “robocalling.”

Also consider using a predictive dialer solution that allows you to implement the various restrictions of the TCPA to ensure you remain compliant. Many of today’s dialers, either premise based or cloud-based, allow companies to set the parameters for use, and this includes complying with do-not-call lists and mobile number scrubbing.

If you use a third-party company – collections, for example – ensure that the rules that need to be followed are spelled out in the contract, and do some research on the company you choose. Remember, if that company makes a misstep, even without your knowledge of approval, the legal onus may still be on you.

Edited by Blaise McNamee
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What Are Related Definitions You Should Know?

Related definitions that you should know as you increase your understanding of predictive dialers include:

Dialer: generic term for any computer-driven device that places outbound calls and connects the answered calls to an agent or operator.

Agent: telephone professional to whom a predictive dialer sends the ready call.

Predictive Dialer: Predictive dialing was introduced for the purpose of increasing efficiency within calling centers. They are computer based system that automatically dial groups of telephone numbers, and then passes live calls to available agents. The SpitFire Enterprise dialer utilizes sophisticated algorithms to speed up and slow down the call rate based on, number of available agents, number of available lines, the campaign’s average call time and other statistical information.

Quick Connect: Quick Connect allows your agents to log in one-to-one with a phone line. This option is great for B2B purposes, especially when your agent needs to be on the phone line through the entire call.

Fixed Dialing: Fixed Dialing gives your call center manager the power to manually set the volume of calls. The software will then automatically dial a predetermined number of lines per agent. Fixed dialing is ideal for political campaigns, charity campaigns, and other situations drop call ratios are not a factor.

Auto dialer: makes thousands of calls screening for busy signals, no answers, fax machines while detecting answering machines/voicemail and delivers pre-recorded messages. SpitFireX Auto Dialer is a low cost solution for voice broadcasting.

How Do Predictive Dialers Work?

Predictive dialers use complex mathematical algorithms that calculate, in real time:

  1. the number of available agents
  2. the number of phone lines available
  3. the probability of reaching a human being at a specific number
  4. the time between calls required for optimum agent efficiency
  5. the length of typical agent/customer or
    debtor conversations
  6. the average length of time agents require to wrap up after a call

SpitFire Enterprise Predictive SEP is a fully blended call center solution that supports unlimited lines, agents, and campaigns. Its greatest strength is in its flexibility: multiple campaigns can be set up, viewed, and changed with the click of a button. With easy options for customization, data and dispositions can be catered to each campaign. In addition to our user-friendly interface, SEPhighlights full customer data and combines multiple campaigns on one screen. All the information your agents need is accessible at a glance, freeing their energy to focus on what matters: the calls.

Keep It Simple with SpitFire Fully Integrated Call Center Software

Our greatest priority is making your call center run smoothly, and we do that by developing software that is intuitive and easily integrated with your current systems. SEP works seamlessly with most CRM applications and long distance carriers, making it the simplest and most cost-effective solution for your call center.

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Benefits of Using a Predictive Dialer

  1. Manages the process of dialing tens of thousands of calls or tens of millions of calls in its lifetime.
  2. Detects the result of the call, as an example: no answer, busy, fax, bad number, answering machine without any presence of human expertise. Consequently saving time by only transferring calls which are voice connects to the agents locally or remotely.
  3. Using predictive dialer increases the productivity of the company by drastically increasing the time agents spend on the phone talking to actual customers or prospective clients.
  4. Predictive dialer users get the ability to organize and better manage the client information, no lost notes scribbled on pieces of paper. The database used by the dialer organizes the calling structure.
  5. The most significant task done by the predictive dialer is to predict, which means always making an effort to get a live call to the available agent with the shortest amount of wait time. This is achieved by self learning algorithms within the predictive dialer to increase or decrease the dial ratio per agent, logged into the system.
  6. Inbound call can be better dealt with by allowing the customers to wait on hold in an IVR system, or a way to leave a message they'd like a callback while the agent is busy talking with other customers.
  7. Most important benefit of a predictive dialer is it reduces expenses for your company over a period of time since you do not need to buy and deploy a complex and sometimes extremely expensive PBX system. Your company will experience return of investment (ROI) in a period of six to twelve months.
  8. A predictive dialing system can effortlessly fit into your companies existing infrastructure since it is software controlled.
  9. The call routing logic and the contact management is all included in one software package. Your call routing logic implemented as per your specifications. Since it is a software package it can easily be upgraded even if you are located remotely with the help of internet.
  10. Provides an added cost effective method of managing the client database by giving the user of the predictive system ability to rework your database on previous call results.

    1. only redial records which were busy, no answers and answering machines
    2. Delete records which are bad numbers, disconnected numbers or operator intercepts
  11. Do a real time look up against the do not call database saving the predictive dialer user from accidentally calling people who have enrolled in the do National not call registry. This saves the company from lawsuits and others risks conforming to all legal statutes and FCC complaints.
  12. Provides progressive dialing capabilities like call blending which means handling inbound and outbound call at the same time.
  13. Provides ability to integrate call recording devices and call monitoring interfaces which helps call center supervisors to train agents and users and improve their customer support skills.
  14. Easy to setup and learn the predictive dialer logic and software tools.

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