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