All Global Resources provides a wide variety of consumer-contact compliance services. We are experts in laws and regulations concerning all manner of marketing campaigns, and we keep our clients out of trouble.
We also vet our clients’ downstream telemarketers and lead generators to ensure they are compliant. Although many companies like to find comfort in the “indemnification clause” commonly found in vendor contracts, the truth is that liability cannot be contracted away. Common-sense should also scream loud and clear that indemnification is only as good as the indemnifier’s ability to pay.
When a $100 million class action walks in the door, indemnification clauses become meaningless as most small players will cut and run. The better positioning from the start is not a “head in sand” but a “know-before-you-go.”
From the viewpoint of Attorneys General and Department of Justice officials, “known or should have known” affixes the ultimate responsibility.
Recently a company with which I have done business placed a perfectly legal sales call to a consumer to discuss providing services to that individual.
The consumer had specifically filled out a request to have that company contact her. It was the first and only call to that person by that company.The call was compliant with the Telephone Consumer Protection Act (TCPA) and the Telemarketing Sales Rule (TSR). The customer did not take the call and instead threatened legal action in response to the call.
This scenario is not new. In this case, however, a third party was involved in the call and in the consumer’s decision to threaten legal action. The third-party was a call-blocking application that labeled the TCPA-compliant marketing call as “Scam Likely.”
The app displayed the number of the calling party but did not display the calling company name, which was broadcast along with the calling number in compliance with the TSR. The app then allowed the consumer to reject the call or answer the call.
Naturally, not knowing exactly who was calling and with a “Scam Likely” display, the customer rejected the call.
Of great importance to you and your company is a million-dollar question buried in the above event: If the customer was not previously called, why did the application label the call as “Scam Likely” in the first place?
Call-blocking applications have become commonplace, with many dozens of them available on the market as freeware and still more offered by phone manufacturers and service providers. They are usually no charge to the consumer.
The problem for marketers is the way the applications work. Consumers receiving incoming calls they perceived to be illegitimate can press a button to label the call as a “telemarketer” or a “scam.” That number then goes into a database of numbers that is subsequently blocked by the apps.
Anyone from an upset customer or delinquent account, disgruntled employee or underhanded competitor can use these applications to create a virtual stonewall against legitimate business calls from a company.
There is a genesis to all this. It was the 10 July 2015 FCC Declaratory Ruling and Order, in which the FCC stated, “there is no legal barrier to stop carriers and providers of interconnected and one-way VoIP services from implementing call-blocking technology and… to block individual calls or categories of incoming calls that may be part of a mass unsolicited calling event.”
Note above that the FCC has labeled all mass unsolicited calling campaigns worthy of being blocked by consumers. This statement is not limited to non-compliant marketing
“As such, we find that telephone carriers may legally block calls or categories of calls at a consumer’s request...”
How does the carrier determine a “category of calls?” Indeed, it is not robo-calling itself that is illegal, but non-compliant robo-calling. We submit that carriers, third-party vendors, and consumers would have no means to determine whether a robo-call was compliant or not.
If your company is obeying the laws of telemarketing, including the TCPA and TSR, the FCC still wants consumers to have the ability to stop telemarketing activities altogether. And this includes not only legitimate unsolicited calls, but also those where the consumer has solicited the call.
In our view, the FCC issued an open-invitation for anyone to develop any product which can be used to stop marketing calls, regardless as to whether those calls were legal or not.
There are no regulations of any kind anywhere preventing any person from simply informing, via these applications, the entire world that a phone number is “bad” and thereby create what amounts to an illegal assault on legal commerce.
We support doing business legally, being in compliance, and doing it “by the book.” We also support the FCC in their intent to protect consumers from real scams and privacy breaches.
But we oppose arbitrary and lazy implementation that otherwise undermines commerce as defined by Congress. Companies need to speak up, and stand up for their rights to conduct legal trade. Contact us today.