Additional Compliance Considerations

The previous discussion included compliance information that is specific to Interaction Dialer. Compliance in the outbound contact center is a broad subject that is not exclusive to predictive dialer configuration. The following information is provided for consideration when beginning any new outbound campaign.

Recording Laws

In any contact center, there exists a need to record conversations, even if only for quality assurance purposes. Depending on the type of industry, multiple regulations exist that govern the right to record, and the retention of the recordings. Multiple State and local statutes may exist, and generally take precedence. Below are some Federal laws/acts that are commonly considered to make the most impact on contact centers:

• Consent-to-Record Laws

• Telemarketing Sales Rule (TSR)

• Truth-in-Lending Act

• Fair Debt Collection Practices Act (FDCPA)

• Health Insurance Portability and Accountability Act (HIPAA)

• Public Company Accounting Reform and Investor Protection Act (Sarbanes-Oxley)

Mobile Phones

The increasing use of mobile phones adds a new layer of complexity with DNC compliance. Primarily, there are two overriding issues:

• Increasing frequency of consumers using mobile phones in lieu of land lines

• Time zone blocking

Mobile number given as main contact: When the Federal DNC list was originally conceived cellular phone numbers tended to be kept very private (generally due to the cost-per-minute involved.) Customers seldom noted these numbers as "Home" when giving out information to businesses, applying for credit, and so on. As mobile plans have decreased in cost, and cellular phone use has become nearly ubiquitous, many consumers have disconnected their home land lines and opted for mobile use only.

This change in consumer behavior has caused some problems with DNC compliance. Conventional wisdom was that mobile numbers were exempt from telemarketing/collections calls, much as they are not publicly published in phone directories. The TFCC used the language "prior express consent" in regard to contacting consumers via the mobile number. Due to more and more individuals solely using mobile phones and thus offering these numbers with other personal information to businesses, the FCC is revisiting the question of contact lists that include mobile phone information.

While the legislation has not officially been edited, multiple forums have been held at the Federal level, and the FCC has clarified its language, originally found in the Telephone Consumer Protection Act (TCPA): "Persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." The statement is further clarified that this applies in such instances that, "the called party has in essence requested the contact by providing the caller with their telephone number for use in normal business communications." The FCC also noted that "normal business communications" involves active consent, i.e. it is still not acceptable to capture the ANI of a mobile number and use it for further contact; the customer must give permission for the number to be used, either verbally or by the means stated above.

Time Zone Considerations: With the increasing use of mobile phones, we are experiencing a shift in another area: the association between area code and time zone. Whereas land lines are, by definition, associated directly with the area code, cellular phone users are not required to reside in the area code associated with their number. This situation becomes problematic in attempting to maintain mandated callable hours, especially if the area code of the mobile number is assigned to a different time zone than where the user actually is.

Existing Business Relationship

As mentioned earlier in the chapter, the Existing Business Relationship (EBR) clause has been noted in legislation beginning in 1991. When the Do Not Call registry began, this exemption was very valuable to companies in that they were allowed to contact, regardless of DNC status, customers who had inquired/applied to them within the last three months, or had purchased a product from the company within the last eighteen months. This exemption opened a much larger market to outbound centers, and provided the means to communicate with their customers.

While the EBR has always been required to cease if a customer asks not to be contacted (that is placed on a company's internal DNC), other litigation has occurred in recent years that questions the definition of "Existing Business Relationship." Of main concern are direct offers/promotions in which consumers are asked for personal information, which is taken as passive consent to contact, that is a "relationship" between the consumer and the company. While most of these marketing tactics are still admissible, several courts have decided that using "veiled" or "concealed" language on the original offer constitutes a violation of DNC regulations. They are referring to the small print, where the consumer is notified that by participating in the promotion, they are giving consent to be contacted by the company, even if subsequent calls are not directly related to the offer. Often this verbiage appears intentionally small, so that a consumer is likely not to read it, or, in some cases that have been litigated, this information has not appeared on the same page as the consumer information request.