Understanding & Responding to TCPA Changes

September 24, 2013

Reach, Recruit & Enroll the Right Students

The leading provider of digital marketing solutions to higher education.

The leading cloud-based conversational analytics solution for improving agent performance across all contact channels by automating performance management.

Jeff Herz: Director, Operations and Compliance

Jason Napierski: Product Marketing Manager

Regulatory • TCPA regulation updates

• Potential penalties • Controversies

Transparency • CUnet policies

• CallMiner

Quality • Benefits to marketers

• Benefits to affiliates

Agenda

Part I: Regulatory

Telephone Consumer Protection Act (TCPA)

• Originally passed in 1991 • Restricts telephone solicitations and use of

automated telephone equipment: • Automated telephone dialing systems (ATDS) • Artificial or prerecorded voice messages • SMS text messages • Fax machines

TPCA General Provisions

• Hour restrictions: No calling residences before 8am or after 9pm (local time)

• DNC lists: • Company-specific (request must be honored for 5 years) • National Do Not Call Registry

• Identification: Provide caller details (name, name of company, telephone/address)

• Restricted automation: • No ATDS or artificial voice/recordings to emergency lines • No autodialed calls to 2+ lines of a multi-line business

• Fax restrictions: No unsolicited advertising • Litigation: Sue for up to $1,500/violation or to recover actual

monetary loss (whichever is higher)

Updates to TCPA Regulations

• New requirement: Prior express written consent of the called party is required to make telemarketing calls or calls that introduce advertisements to cell phones via ATDS

• Objective: Address growing number of telemarketing calls to cell phones using automated telephone dialing systems (ATDS)

• Effective date: October 16, 2013

• Impact: Telemarketing practices through vendor calls and online forms

Automated Telephone Dialing System (ATDS)

Definition Equipment which has the capacity:

• To store or produce telephone numbers to be called, using a random or sequential number generator – this includes • predictive dialer, • power dialer, • preview dialer, • click-to-call or • anything that can dial

numbers without human intervention

Source: transition.fcc.gov/cgb/policy/TCPA-Rules.pdf

Prior Express Written Consent

An agreement bearing the signature of the person called

• Acceptable formats: • In writing • Writing may be “electronic”

• In compliance with E-Sign Act • Ex: voice recording, online form

Prior Express Written Consent

Required Elements of the Agreement 1. Authorizes seller to deliver or cause delivery

of advertisements or telemarketing messages using ATDS to specific cell phone number

2. Cites the entity granted consent (or entity on whose behalf the call is made)

3. States that consent is not required as condition of purchase

4. Includes signature of the called party (E-Sign is acceptable)

5. Clearly and conspicuously discloses all of the above

Additional Notes

Potential Penalties

• Class action cases have cost companies millions • Judges siding toward NOT certifying class action suits

$500 MINIMUM

$1,500 MAXIMUM

Per Violation Penalty

TCPA Litigation & Settlements

• Jiffy Lube’s promotional texting campaign → $47 million settlement

• AT&T made 15,000 calls using ATDS → $4 million settlement • Coca-Cola & Papa John’s settled TCPA lawsuits for millions

• Small business targeted

• Five-person, family-owned business sued in class-action for $4 million for sending unsolicited faxes (class action denied)

Future TCPA Issues

• Legal commentators warn of increased lawsuits due to new “written” requirements

• Courts may vary widely in further clarifying what constitutes “prior express written consent”

• Courts have incentive to stem the TCPA tide by dismissing class action suits: • Courts recognize TCPA class actions primarily

benefit plaintiffs’ lawyers • Courts have very limited time/resources

Future TCPA Issues

• Courts may strike down the writing requirement if the new regulation “adds” rather than “interprets” the TCPA

• Congressional action is possible but unlikely in the near future • Small law firms/solo lawyers could unintentionally accelerate

congressional action if small business remain targets

Important Lessons

• Litigation is generally very expensive – even if you win • Develop best practices and monitor diligently • Be conservative but not paranoid

Part II: Transparency

CUnet Policies: CollegeQuest

• Implemented August 1: • Updated both web pages and call

center scripts • Requesting express written

consent (in standard script) • Schools can provide language for

custom script • CallMiner

CUnet Policies: 3rd Party Call Center

• Required verification of prior express written consent

• Express consent to transfer the caller and/or information

• Scripts audited by MOQC • CallMiner

CUnet Policies: Data Inquiries

• Amended Contractual Agreement to build updated requirements for prior express written consent

• Screenshots reviewed by MOQC and stored in Sparkroom Monitor • Continual reviews started in August

Sample Consent

By Clicking the submit button, I agree to be called by or on behalf of

[SCHOOL] or CollegeQuest, using an automatic telephone dialing system at

the phone number(s) provided on this form. All calls placed will be regarding

educational services that you are requesting. You are not required to

provide consent to receive services from this/these school(s) or CollegeQuest.

CallMiner: Automating Agent Monitoring

Manual Monitoring

Costly, resource intensive

Inaccurate (sampling, subjectivity)

Untargeted

Slow, untimely

Not actionable

Key intelligence undiscovered

Analytics/Automated Monitoring

Analyze 100%

Objective, consistent

Timely, direct, & continuous

Target manual efforts

Monitor retraining efforts

Extract intelligence

Confirm/deny trends

How Speech/Contact Analytics Work

Acoustics

Transcripts

Categorization

Structured consumable information

Feedback

Contact ID: 394802

Agent: Gabriel Nelson

Department: Graduate Studies

Date: Oct 15, 2012 – 9:36AM

Direction: Inbound

Client: Arizona State

Prospect ID: 1298281

Mobile phone: Yes

Raw unstructured data

Analyze

Alert

Search, trend, discover, compare, report

Automated quality & performance management

Scores

Real-time monitoring “Missed Disclosure!”

Top rank – Compliance “Your Compliance Risk

score is one of the lowest this week!”

Example Contact

Interactions

Duration: 5m46s

% Silence: 40%

Agitation: 3459 Tempo: 105wpm

“…seeking an MBA…”, “…yes you may contact this number…”, “Let me see what I can recommend…”

Qualified lead: Yes

Escalation: No

Dissatisfaction: No

Express consent: Yes

Agent ownership: Yes

Politeness: Yes

Empathy: No

Proper Disclosure: No

Repeat Contact: No

Agent Quality: 82

Compliance Risk: Med

(disclosure, consent, salary, employment, aggressive sales, deceptive marketing)

Efficiency rating: 57

Lead quality: 75

Alert

Part III: Quality

Benefits of CallMiner

• Increased transparency helps quality shine • Removes random sampling • Focuses human capital on high-risk monitoring • More engaged prospective students • More compliant inquiries

Benefits to Schools

• High quality prospective students • Students with real intent • Fewer instances of fraud • Non-qualified prospects reduced • More time spent with best candidates

Benefits to Affiliates

• Prove you have nothing to hide • Demonstrate efforts to improve

education ecosystem • Cross check for problem/

resolution

Summary

Implications of TCPA Changes

• Process & policy changes • Obtaining consent • Record keeping

• Increased transparency • Improved quality • Better partnerships

Jeff Herz Operations and Compliance Director CUnet jeff.herz@cunet.com Jason Napierski Product Marketing Manager CallMiner jason.napierski@callminer.com Download TCPA Guide for Contact Centers: www.callminer.com/TCPA

This presentation is not offered as and does not constitute legal advice or legal opinions. It is offered only for general information and educational purposes. The material in the presentation is intended, but not promised or guaranteed, to be current, complete or up to date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship between you and CUnet, CallMiner or any of their affiliated companies, officers, employees, agents or attorneys. You should not act or rely on any information contained in this presentation without first seeking the advice of a licensed attorney in your state.