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Understanding FCC’s Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling: Navigating Compliance Issues and Challenges

Technology CLE

Understanding FCC’s Telephone Consumer Protection Act (TCPA) Omnibus Declaratory Ruling: Navigating Compliance Issues and Challenges

Live Webcast Date: Friday, January 22, 2016 at 10:00 am - 12:00 pm (ET)
TechnologyRecording

On July 10, 2015, the Federal Communications Commission (FCC) released its TCPA Omnibus Declaratory Ruling and Order "to reiterate and simplify the relevant portions of the TCPA." The Ruling laid out a number of TCPA exemptions, reaffirmations, and new rules.

Apparently, the business sector does not welcome the FCC's Ruling. After the FCC released the new rules, the ACA International filed a suit seeking judicial review from the U.S. Court of Appeals for the D.C. Circuit. The ACA International contends that the Ruling is in disagreement with the true intent of the TCPA. It was followed by a petition for review filed by the Consumer Bankers Association (CBA).

It is clear that the new rules will adversely affect businesses using automatic telephone dialing technology. The emergency exceptions' limited reach accents the probable illegality of currently used automated commercial communications. The use of autodialing technologies by businesses will be significantly restricted making it harder and costlier for them to connect with their clients.

In light of these new TCPA requirements, companies using automated calls or texts to communicate with their clients must review their business practices to be able to dodge potential violations.

Our panel of key thought leaders and practitioners assembled by The Knowledge Group will offer a discussion of the fundamentals as well as updates regarding the latest and significant compliance issues surrounding FCC's new TCPA Ruling in this two-hour Webcast. The panel will also provide their expert opinions on how to avoid TCPA pitfalls, risk issues, and strict liabilities.

Key topics include:

  • TCPA Omnibus Declaratory Ruling and Order – An Overview
  • Criticisms
  • Consolidated Appeal: ACA International, et al. v. FCC and United States of America
  • Compliance Risk Issues and Challenges
  • Liabilities
  • Managing Compliance
  • Regulatory Forecasts

Who Should Attend

  • Telecommunication Attorneys
  • Attorneys General
  • Criminal and Civil Litigators
  • Senior Technical Advisors
  • Marketing Executives
  • Chief Information Officers
  • Litigation Officers
  • Legal Counsel
  • Risks and Compliance Officers
  • Top Level Management
  • Other Related/Interested Professionals and Organizations
Laura Phillips, Partner
Drinker Biddle & Reath LLP
AND

Meredith Slawe, Partner
Drinker Biddle & Reath LLP
  • Where We Are and How We Got There.  What was the purpose of the TCPA and why are businesses now paying attention to it? 
  • Precursor to wider privacy debates
  • What role has the FCC played in adopting and modifying its rules and its TCPA statutory interpretations over time?  Will that change and have the FCC Commissioners been unified in their approach to contentious issues?  Have they made new law?
  • How does the FCC and the FTC deal with overlapping statutes and jurisdiction in this area of consumer protection?
  • What are some of the common recurring interpretive issues both at the FCC and in litigation?
  • How do Do Not Call requirements interact with TCPA requirements?
  • What qualifies as an “emergency purpose” exemption?
  • What’s the “call to action” text message exception and why is it important?
  • Solicited and Unsolicited faxes, fax law and cases, retroactive waivers
  • What are some best practices for parties seeking to minimize their exposure?
  • What are the main litigation trends?

Nathaniel J. Hardy, Of Counsel
Marashlian & Donahue, PLLC
AND

Seth L. Williams, Attorney
Marashlian & Donahue, PLLC
  • TCPAA Provisions
    • Act Provisions & FCC Rules
      • Different Treatment of Residential and Mobile Numbers
      • Consent
    • Omnibus Order
      • Definition of Autodialer
      • Called Party vs. Intended Party & Reassigned Numbers
      • One Call Safe Harbor
      • “On Demand” Text Responses Removed from TCPA Liability
      • Revocation of Consent
  • Criticisms
    • Broad Reach of Definition of Autodialer
    • FCC Misinterpreted Called Party Definition
    • Revocation of Consent is Impractical
  • Consolidated Appeal: ACA International, et al. v. FCC and United States of America
    • Status, Opening Briefs filed 11/25/2015
    • Joint Petitioners filed 11/25/2015
    • Rite Aid filed separately 11/25/2015
  • Compliance Risk Issues and Challenges
    • Broad definition of Autodialer
      • Definition encompasses most modern dialing equipment
      • Human intervention as a way to limit TCPA liability
        • One difficulty with the human intervention test is that the Commission did not adopt a brightline test, instead it will use a case-by-case analysis
        • Because of the FCC’s case-by-case approach, more  human intervention is better (For example, a one-touch press-to-dial dialing option may not offer as much protection as a dialing option that requires an agent to dial the entire 10 digit number)
      • If used together, equipment owned and controlled by separate companies can constitute an autodialer (See Fried Petition)
    • Capturing Consumer Consents and Revocations
      • Updating Consents is imperative
      • Documenting Consents – critical because callers bear burden of proving consent
      • Consent can travel with a ported number, but will only be as good as the original consent
    • Confirming Numbers remain w/ person that provided consent
    • Party that initiates or makes a call
      • Especially important for app developers and calling platforms
      • More autonomy for end user/customer the better, but TextMe Petition in Omnibus Order shows app developers can retain some control over a message and still not be deemed the maker of a call
      • See also Dialing Services NAL with respect to dialing platforms
      • DO NOT help customers spoof numbers as a dialing platform
  • Managing Compliance
    • Maintaining and Scrubbing Against Business-Specific Do Not Call Lists
    • Scrubbing Number Lists against National Do Not Call List
    • Differentiating landline and mobile numbers
    • Scrubbing Number Lists against Ported Number Lists
    • Scrubbing Number Lists against Consent Records
    • Developing systems to track consent, including FCC’s suggested best practices from the Omnibus Order (This is not a safe harbor)
      • periodically emailing or mailing customers to ask them to update their contact information, including telephone numbers;
      • require customers to inform the caller when they change telephone numbers in contracts with customers;
      • include interactive opt-out mechanisms in all autodialed or prerecorded calls so called parties can report wrong numbers;
      • provide customer service representatives with the ability to record wrong numbers while making outbound calls;
      • provide customer service representatives with the ability to record new numbers for customers when they receive calls from the customers;
      • recognize “triple tones” indicating that a number has been disconnected when making autodialed or live telephone calls and record the number as disconnected and likely to be reassigned;
      • establish policies that automatically note numbers as having been reassigned if a customer cannot be reached at a number after a period of time; and
      • enable customers to update contact information in response to a text message.
  • Liabilities
    • Private Rights of Action
    • Class Actions
    • FCC Enforcement Bureau Investigations and Forfeitures
  • Regulatory Forecasts
    • Continuing aggressive enforcement by FCC’s enforcement bureau
      • See Call-Em-All, Phonevite, and PoliticalRobocalls Citations
      • Additional examples of recent FCC TCPA enforcement
    • More policing of Terms of Service Agreements, as seen in FCC’s Enforcement Bureau letter to Paypal

Course Level:
   Intermediate

Advance Preparation:
   Print and review course materials

Method Of Presentation:
   On-demand Webcast

Prerequisite:
   NONE

Course Code:
   145197

NASBA Field of Study:
   Specialized Knowledge and Applications

NY Category of CLE Credit:
   Areas of Professional Practice

Total Credits:
   2.0 CLE

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About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

About the Knowledge Group

The Knowledge Group

The Knowledge Group has been a leading global provider of Continuing Education (CLE, CPE) for over 13 Years. We produce over 450 LIVE webcasts annually and have a catalog of over 4,000 on-demand courses.

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