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 the year ahead is your lead gen and sales team’s best yet by staying on top of the call center compliance trends and outbound calling laws that will shape the landscape. Inside this comprehensive guide to TCPA compliance support in 2022, you’ll find:
- A review of the events that shaped compliance last year
- A list of legislation and events on the horizon
- The best ways to manage TCPA compliance risk in 2022
[Note: Nothing in this article constitutes legal advice. Convoso recommends retaining and consulting an attorney for ongoing guidance on regulatory compliance.]
2021 in Review: The Biggest Events in TCPA Compliance
To understand where TCPA compliance is headed in the year ahead—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 2021 will have ramifications in 2022 and beyond.
Facebook v. Duguid
On April 1, 2021, the US Supreme Court handed down its decision in the Facebook v. Duguid case. As we reported at the time, the landmark TCPA ruling was expected to be a game-changer for call centers everywhere.
In a unanimous decision, the court narrowed the definition of the term “automated telephone dialing system” (ATDS). This change meant that call centers using a predictive dialer (like Convoso’s) without an ATDS could ostensibly now call leads without opt-in consent under TCPA.
However, according to Eric J. Troutman of TCPAWorld, at this time, the majority of courts are ignoring the Facebook ruling at the pleading stage. “[The Facebook ruling] should have enabled us to throw out almost all ATDS cases, but the courts just aren’t biting.”
Instead, Troutman says most cases related to ATDS issues are surviving past the initial stage. And as the courts continue to assess the real impact of the Facebook ruling, call centers will certainly want to do what they can to avoid the increased costs and ramped-up risks that come with cases that proceed that far.
While the April Facebook ruling shaped the entire year in TCPA compliance, it was far from the only change in 2021 that has forced outbound call centers to take notice. In addition to the Supreme Court ruling from the federal level, individual states enacted their own legislation with more local impact.
In the most high-profile example, Florida passed its own “mini-TCPA” in reaction to the Facebook v. Duguid decision. The law includes a range of provisions, like giving Florida residents the ability to initiate class-action suits against violators, requiring express-written consent for autodialed calls to be made, and much more.
Speaking at a LeadsCon 2021 panel, Kevin Rockoff, General Counsel at SmartFinancial, said that the private rights of action created by bills like these can create real headaches for call centers who do not keep compliance front and center. “It’s kind of like having 10,000 minor deputized attorneys general calling you up and calling you out for potential violations,” said Rockoff. “And, unfortunately, in most cases, they’re not actually informed enough to know whether or not you actually are in violation.”
Meanwhile, in November, New York Governor Kathy Hochul signed into law two bills related to robocalling issues. Each of these laws further empowered the state to enforce federal provisions and enabled telecom companies to block calls deemed to be fraudulent.
In the midst of these new decisions and regulations, an older compliance matter finally took effect: In June of 2021, the deadline for telecom carriers to implement the STIR/SHAKEN framework passed after years of anticipation.
What’s On Tap for TCPA Compliance in 2022
While the new year will surely bring, as it always does in our industry, some unpredictable surprises, here are some of the biggest developments on the horizon in 2022.
Small Provider STIR/SHAKEN Deadline
Though many carriers were required to implement STIR/SHAKEN provisions in 2021, the FCC provided an extension for smaller voice providers. However, though that extension initially gave smaller providers until mid-2023 to implement the framework, the FCC recently shortened the deadline by one year, ordering small voice providers to comply by June 30, 2022.
Just as it was for many call centers in 2021, it will be critical for outbound teams to verify that their providers are compliant with STIR/SHAKEN standards and deliver an A-level attestation for outbound calls. With the highest ratings, call centers can help ensure the highest level of performance.
Continued Litigation and Fallout Around the Facebook Ruling
As we noted above, the Facebook v. Duguid ruling captured a whole lot of headlines in 2021. However, while many celebrated the court’s narrow definition of ATDS, thinking that it would make life easier for outbound call centers, the truth is that things are a lot more complicated than that.
Speaking during a webinar in late 2021, Eric J. Troutman emphasized that the TCPA isn’t going anywhere. In fact, he said, even post-Facebook, the TCPA will remain the biggest litigation cash cow in US history. So, in 2022, the Facebook case’s consequences will continue to loom large as litigators, legislators, industry organizations, and courts all weigh in and shape the future of telecommunications regulations.
More State-Level Actions on the Way?
Whether in response to the SCOTUS ruling or independently, other states may follow Florida’s lead in 2022, crafting and potentially passing their own bills that affect the way your lead gen and sales teams can reach customers.
Of course, it’s not just bills like Florida’s Mini-TCPA that can force call centers to change how they operate. States like California, Colorado, and Virginia have each passed complex privacy protection legislation that businesses need to be aware of.
And it won’t end with these states. According to Kevin Rockoff, as many as 25 states are looking to enact their own privacy-related regs in the near future, potentially forcing businesses to do even more compliance gymnastics. In states like Hawaii, Maine, Massachusetts, New York, and North Dakota, similar privacy laws are already being considered by legislators.
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 2022, 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 2022
With all of these changes afoot and unforeseen events sure to take place in 2022, 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 2022, 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.”
Preparing 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 have the AI “listening” to the call to make sure the agents are staying in compliance. “It’s about being proactive instead of reactive.”
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.”
Instead, Hakimi recommends sticking to 50 calls per number per day as a good rule of thumb.
“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 2022 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 2022 and beyond.
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