[Updated May 2023; Originally published Jan 2023]
TCPA compliance and optimal performance go hand in hand these days. And with an increasing number of regulatory hoops to jump through, managing a successful and compliant outbound call center only gets more and more complex.
Make sure that this year is your lead gen and sales team’s best yet by staying on top of the call center compliance trends and outbound calling laws shaping the landscape. Inside this comprehensive guide to TCPA compliance in 2023, you’ll find:
- A review of the events that shaped compliance last year
- An overview of recent, pending, and potential legislation and regulations
- The best ways to manage TCPA compliance risk in 2023
NOTE: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.
2022 in Review: The Biggest Events in TCPA Compliance
To understand where TCPA compliance is heading—and to know how your business needs to respond—it’s critical to know just what’s unfolded in the recent past. Read below to see which regulatory happenings of 2022 will have ramifications in 2023 and beyond.
[This trend article is part of the Convoso series, “Outbound Contact Center Trends,“ helping you stay current with issues, technologies, best practices, and strategies that impact your business. Our aim is to provide tools and guidance that will improve productivity, efficiency, and ultimately profitability for your sales and lead generation team.]
Facebook v. Duguid Fallout Continues
The April 2021 Supreme Court decision in the case of Facebook v. Duguid was a game-changer for call centers everywhere. In 2022, it continued to have a huge influence on TCPA litigation.
While (thanks to the SCOTUS ruling) there were fewer claims related to the use of an ATDS moving through the courts, litigators changed gears and began targeting other aspects of telemarketing. As our expert panel discussed during an August 2022 compliance webinar, many were shifting their attention toward prerecorded voicemail and artificial voice claims. Use of both of these technologies, whether on calls made to landlines or cell phones, trigger the TCPA consent requirements.
More Mini-TCPAs on the Books
Another 2021 event set the stage for 2022 regulatory activity. Follow the passage of Florida’s 2021 mini-TCPA, states like Oklahoma and Washington followed in their footsteps, passing their own similar laws.
These new laws could create some real headaches for businesses making outbound calls. As TCPA expert and attorney Eric J. Troutman describes it, all of these separate, state-by-state laws are creating a patchwork—and that patchwork just isn’t lining up. With an increasingly wide variety of mismatched requirements and rules, doing business and supporting compliance in multiple locations is becoming more and more complex. And unfortunately, as we discuss below, it doesn’t appear like that’s going to change in 2023.
What’s on Tap: TCPA Compliance Trends in 2023
While the rest of the year will surely bring, as it always does in our industry, some unpredictable surprises, here are some of the biggest developments so far in 2023.
Partners, Consumer Consent, and “Lead Gen Loophole” Under the Microscope
Michelle Shuster, compliance expert and Founding Partner at MacMurray & Shuster, said late last year that a recent lawsuit by the Pennsylvania Attorney General’s office is perhaps the most important development for call centers to watch in 2023.
At issue in the lawsuit is lead provider Fluent, Inc.’s generation of leads on behalf of huge lists of hundreds of marketing partners. The litigation around this use of marketing partners to get consent, is in Shuster’s word’s, the next “shock wave” to hit the industry and shake up both lead generation and consent documentation practices.
Shuster was right on the money. Early this year, the FCC announced a Notice of Proposed Rulemaking that sought to potentially close what it terms the “lead gen loophole.” The FCC’s proposed rules are currently being commented on and considered by industry stakeholders.
If passed without amendment, the FCC’s new definition of prior express written consent would require lead forms to obtain consent for only one entity. If a form obtains consent for multiple entities, those entities must be “logically and topically associated.” Further, the entire list of entities must be clearly and conspicuously disclosed to the consumer, meaning at a minimum, “displayed on the same web page where the consumer gives consent.”
State Privacy Laws and More Mini-TCPAs on the Way
Businesses will want to continue to monitor the action unfolding at the state level in 2023. Michigan recently introduced its own mini-TCPA law, which is significantly more comprehensive than previous state laws. Not only does it have a serious chance of becoming law sometime in 2023 but, as Eric Troutman told Convoso’s Lisa Leight when the bill was first introduced, it may become a model that more states may soon follow.
Meanwhile, Washington has strengthened its telemarketing regulations, passing amendments that increased penalties and expanded the private right of action for residents. Luckily, it’s not all bad news for call centers at the state level: Florida just passed amendments to its famous mini-TCPA law, the FTSA, that narrowed its definition of autodialer, limited the types of calls covered by the law, and introduced a requirement for a 15-day notice to be given before a consumer can sue.
Mini-TCPAs aren’t the only thing to watch across the country, however. Six states have already passed their own privacy laws, and more may be on the way this year—all while the American Data Privacy Protection Act is pending in Congress.
As this situation unfolds, uncertainty remains around whether or not any federal legislation will preempt existing state laws. California, for one, is fighting to make sure that there will not be any sort of preemption of its own extensive privacy law, the CCPA.
If they’re successful, this could be disastrous for businesses, according to Michelle Shuster. Much like with mini-TCPA laws, organizations would be left to wade through a nationwide patchwork of individual laws with different requirements. With a number of scenarios possible over the rest of 2023, Shuster emphasized that now is the time for businesses to get their affairs in order and work with counsel to get ahead of new regulations.
SMS May Be Teams’ Safest Channel (Outside of Florida)
In the face of increased regulations, call centers will need to look for other ways to reach customers. In 2023, outbound text messaging isn’t just going to help contact centers do so effectively, it will also help them do so safely. As Troutman wrote in the National Law Review, triggered text alert platforms and conversational AI systems appear to be big winners in the post-Facebook era.
What makes these systems so safe? While they’re not entirely fool-proof, of course, these systems operate on a one-to-one basis. That is, they’re triggered by real-life events and no random or sequential number generation is involved, so they elude any concerns of being deemed an ATDS.
However, as the experts at Contact Center Compliance note, since the passage of its Mini-TCPA law, Florida courts have seen a huge rise in class-action suits related to the use of text messaging systems. In effect, this means that although text messaging might be the safest channel everywhere else, it’s currently the riskiest channel for businesses contacting customers and leads in Florida.
Best ways to manage TCPA compliance risk in 2023
With all of these changes afoot and unforeseen events sure to take place in 2023, successful call center managers will need to have TCPA compliance top-of-mind. Here are some of the best ways to manage compliance risks for your company.
Use a Dialer that Supports TCPA Compliance
When it comes to TCPA compliance solutions for outbound call centers, your software platform is your greatest asset. To stay competitive in 2023, you need a dialer that supports TCPA compliance while optimizing every area of your operations.
Your contact center software provider should diligently stay abreast of updates and trends in TCPA regulations to minimize risk to customers. The dialer system should enable responsible dialing strategies (see below). Depending on the type of leads you are calling and the consent associated with those leads, you may want to consider a manual dialing solution, like Convoso’s Click-to-Comply™ product.
Use TCPA-Compliant Leads
John Gallagher recommends that you buy TCPA compliant leads (and that’s where his consulting company, Thrive Marketing can be helpful). “You have to make sure that your opt-ins are legal. And while somebody may have an opt-in, getting an opt-in that will protect you is very much an art and a science. And then beyond that, there are systems that will help you make sure that nothing falls through the cracks. So systems like Anura, the Blacklist Alliance, using TrustedForm and Jornaya. These are some of the technologies that really make a difference. DNC.com is another.
“So, integrating those into your dialing system is critical for long term success. You might be able to do things on a short term basis and get away with it, but if you’re not implementing tools such as these, eventually somebody’s going to get to you. And for most of us, we’re in long term businesses and so you need to find a way to build these systems, talk to experts who have done it in the past and get it integrated.”
In the webinar “The 2.0 Call Center,” Executive Director of the Consumer Consent Council, Rob Seaver, talked about the importance of getting submission forms right. “There are people who you get on the phone and you hear that dreaded, ‘I did not sign up,’ which is impacting TCPA, because if they did not fill out the form, or if they were not the owner of the phone number that they submitted the form with, you possibly could be looking at a TCPA violation.”
Prepare leads for compliance before dialing
Kyle Andersson, Director of Operations for Digital Market Media, explains the importance of preparing leads to be sure they are compliant prior to dialing. He says that at Digital Market Media, “We’re hyper-focused on compliance before the data even hits the dialer.” Then they use an AI “listening” QA tool on the call to make sure the agents are staying in compliance. “It’s about being proactive instead of reactive.”
Use a lead fraud detection tool
In addition to potential fines, violations of TCPA rules are resulting in increased class action lawsuits. Beyond dollars and cents, failure to comply with the TCPA can damage your brand’s reputation and waste valuable resources if your sales team tries to contact potential customers who did not actually ask for the call. However, it’s not simply about brand reputation and consent.
Fake leads have become a major problem in the lead generation space. Fraudsters gain access to a real individual’s contact information and use it to fill out phony leads or sign-ups. Our friends at Anura.io have a great solution that works within your existing framework. Learn more here about Anura’s approach to fraud detection.
Implement Smart Dialing Strategies and Caller ID Reputation Management
“Over-dialing your leads is the biggest problem,” shared Nima Hakimi, Convoso CEO & Co-Founder, in a webinar on STIR/SHAKEN and call blocking. “Your contact rates will just go down. It’s a failing strategy. We really want to make sure everybody truly understands it will no longer work. You [also] need to have a system in place that can automate that lead follow-up process in a manner that doesn’t abuse the consumer and call them to death. [Then], you won’t be in the position where you’re over-dialing and your calls get blocked.”
In 2023 and beyond, it’s increasingly essential to avoid call blocking and DID flagging. Make sure your dialer supports smart dialing strategies and offers caller ID reputation management tools. Convoso customer Jesse Daniels, VP Sales at One Health Direct, describes this as one of the biggest issues for large outbound call centers:
“We’re making a million outbound calls a day. I read a statistic lately that there’s about a 6% chance that someone’s going to pick up the phone if they see “Spam likely”. So if that’s showing up on their cell phones, they are not picking up the phones. And if people are not picking up the phones, I can’t make money and I can’t keep my business afloat. And I can’t keep the 500 employees that we have nationwide employed. So that’s huge.”
Enlist Expertise and Assess Your Risks
“As you move into the future, with things coming at you from different angles every day, the need for expertise is more prevalent than ever before,” says Eric Troutman.
That means having the best tools in place to support compliance, even beyond your dialer software. A recent LeadsCon panel recommended implementing TrustedForm from ActiveProspect as a great way to support compliance—and, in case you need to, prove that you’ve obtained customer consent.
Enlisting expertise also means obtaining top legal counsel. Getting attorneys on your side who can not only advise on legal issues but aid in audits and risk assessments is essential for supporting compliance, in 2023 and beyond.
DISCLAIMER: The information on this page and related links is for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.
