The Class Action Minefield

Class action lawsuits are on the rise in a big way. Expect to see even more with the recent effective date for the new Prior Express Written Consent requirement with claims of treble damages amassed.

Through my work as an expert witness in several TCPA class action cases, I have experienced some of the pitfalls that have exposed companies to risk. Of course, the majority of cases I’m working on involve either SMS/text or calls to mobile phones using an Automatic Telephone Dialing System (ATDS). As most of you already know, under the TCPA, it is unlawful to place a call for any purpose, utilizing an ATDS, to a wireless device without the called party’s prior express consent. As stated above, this consent requirement will soon be even more stringent under the revised TCPA.

Calling/texting with an ATDS is nearly a zero tolerance endeavor:
Mistakes, oversights, not understanding the rules, and failures by third parties all have factored into these class actions. Despite companies’ earnest efforts to follow the rules, many are still exposed to risk.

Remember that EVEN if you have previously obtained expressed consent to call a customer’s mobile phone, it means nothing if that party is no longer the subscriber of the number when dialed with an ATDS. If you believe your dialing solution does not meet the definition of an ATDS, you should engage a neutral third party expert to evaluate the solution and document his or her opinion. You may need it. Below are a few steps to consider that could reduce your risk when calling/texting mobile numbers for ANY purpose.

• Identify customers with wireless telephones by scrubbing against the available wireless block identifier and ported number lists (NeuStar or Telcordia)
• Ensure the call is exempt under Do Not Call rules
• Consider manually dialing mobile telephone numbers
• Never auto-dial mobile numbers obtained through skip tracing or third parties
• Maintain records to prove manual versus auto-dialed calls
• Record calls and maintain recordings for at least 5 years
• Maintain records of express consent for as long as you intend to rely upon the consent
• Identify numbers that were provided as a wireline and then ported to a wireless number by suppressing against a ported number list every 7-14 days

Should you decide to continue to use an ATDS to contact customers’ wireless phones for ANY reason, we recommend the following (risk mitigation; not avoidance):

• Modify scripting to ensure agents always ask for the party you intend to contact by name immediately after the required initial disclosures.
• If the called party indicates (or an answering service message) that you have reached the wrong party, apologize, end the call immediately and update your records.
• Add these additional due diligence procedures to your compliance guidelines (manual) and train agents accordingly.
• Escalate irate call recipients to a first line manager who can explain the facts.

Conclusion:
We will continue to monitor consumer privacy and marketing issues and report any new developments. As always, our compliance consultants are available to assist with this or any of your other compliance management needs.