Telecommunications
established business relationship- prospect
A prospect EBR exists if the consumer has made an application or inquiry regarding the seller's goods and services. This EBR runs for three months from the date of the person's inquiry or application.
telemarketing
plan, program, or campaign which is conducted to induce the purchase of goods or services or a charitable contribution by use of one or more telephones and involves more than one interstate phone call.
Explain the new FCC robocall rules.
1. Even if a company has an established business relationship with a consumer, it is required to receive "prior express written consent" for all robocalls to residential lines. Rules also include a provision that allows consumers to "opt out of future robocalls during a robocall."
Who does CAN-SPAM apply to?
Anyone who advertises products or services by electronic mail directed to or orginated from the United States. Law covers the transmission of commercial e-mail messages whose primary purpose is advertising or promoting a product or service.
US National Do Not Call Registry
program provides a means for US residents to register residential and wireless phone numbers they do not wish to be called for telemarketing purposes.
intrusion on seclusion
tort that imposes liability on "one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns". Plaintiff must show "the intrusion would be highly offensive to a reasonable person.
mobile service commercial messages (MSCMs)
"a commercial electronic mail message that is transmitted directly to a wireless device that is utilized by a subscriber of a commercial mobile service." The message must have (or utilize) a unique electronic address that includes "a reference to an Internet domain." The FCC also notes in its commentary that the rule is designed to apply only to mail addresses designed by carriers for mobile services messaging.
What are penalties for DNC non-compliance?
$16,000 per call
What is the definition of abandonment under TSR?
A call is abandoned if a person answers it and the telemarketer does not connect the call to a live sales representative within two seconds of ther person's completed greeting.
Describe required disclosures by telemarketers under the TSR.
Before delivering any sales content, a telemarketer must disclose the identity of the seller, the purpose of the call is to sell goods or services, the nature of those goods or services, and in the case of a prize promotion, that no purchase or payment is necessary to participate or win, and that purchase or payment does not increase the chances of winning.
Explain preemption by CAN-SPAM.
CAN-SPAM preempts most state laws that restrict e-mail communications, although state spam laws are not superseded by CAN-SPAM to the extent such laws prohibit false or deceptive activity.
TCPA
FCC Telephone Consumer protection act 1991
Telephone Consumer Protection Act of 1991 (TCPA)
Prohibits unsolicited commercial fax transmissions
Who does the Telecommunications Act of 1996 apply to?
The Telecommunications Act of 1996 covers telecommunications carriers and VOIP, which stands for voice-over internet protocol, and includes carriers like Skype and Vonage, not to mention your cable provider. Note, however, that while the Telecommunications Act covers VOIP through a cable provider, it does not cover Internet communications themselves or cable service communications themselves.
Explain other requirements of the 2008 FTC regulation related to CAN-SPAM
(1) prohibition on having the email recipient pay a fee to opt out (2) definition of a valid physical postal address and (3) application of the term person to apply beyond natural persons
established business relationship - customer
A customer EBR exists if the consumer has purchased, rented or leased the seller's goods or services within 18 months preceding a telemarketing call. The 18-month period runs from the date of the last payment, transaction or shipment between the consumer and the seller
Explain the other provisions of the TSR
Credit card laundering; telemarketing sales of credit repair programs, loss recovery servcies and advance loans, telefunding activities.
TSR
FTC Telemarketing Sales Rule
What does the Telecommunications Act of 1986 dictate with respect to privacy laws?
there are strict controls under the Telecommunications Act on the access, use and disclosure of CPNI.
CAN-SPAM 2003
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
What is not the purpose of CAN-SPAM?
To eliminate all unsolicited commercial email
Who enforces CAN-SPAM?
FTC and other federal regulators along with state attorney generals.
Entity specific suppression list
Internal lists of do-not-call requests from any consumer who has expressly asked a seller not to call them again.
CPNI
customer proprietary network information--information collected by telecommunications carriers related to their subscribers.
Explain the specifics of exceptions to DNC through consent.
Finally, a seller may call a consumer who has opted in to such calls, but the consumer's consent must be explicit and in the writing, and a seller's request for such consent must be "clear and conspicuous," not hidden in fine print or pre-checked on a website. The FTC has taken a particularly hard line on sweepstakes entry forms, which it views as having been used to deceptively obtain consumers' consent.
What is the prohibition on unauthorized billing under the TSR?
Frist, consumers must give "express informed consent" to be billed for any goods or services
Describe TSR requirements for "free to pay" conversion offers.
If preacquired info is used with free to pay conversion offers, the telemarketer must: (1) obtain from the customer at least the last four digits of the account number to be charged (2) obtain the customer's express agreement to be charged for the goods or services using the account number for which the customer has provided at least the last four digits (3) Make and maintain an audio recording of the entire telemarketing transaction.
2007 CPNI
In 2007 the customers started being required to use passwords to get access to their phone records, phone activities and then also to be able to get access to their own associated CPNI
Provide examples of exceptions to DNC rules.
Nonprofits calling on their own behalf Calls to customers with an existing relationship within the last 18 months Inbound calls, providing there is no upsell of products or services Most business to business calls
Define existing business relationship under the JFPA.
An EBR exists if the fax recipient has entered into a purchase or services transaction with the sender within the past 18 months or if the recipient has made an inquiry or application with the sender during the past three months.
Provide an overview on limits on marketing.
U.S. federal and state laws place legal limits on the ways organizations can call individuals for marketing and fund-raising purposes.
Describe the TSR rule on abandonment of calls.
Expressly prohibits telemarketers from abandoning an outbound telephone call with either hang ups or dead air.
Explain 2003 Revision to TCPA
FCC revised regulations and required fax senders to document that they had consent to send faxes by obtaining signed, written authorizations from all prospective recipients.
What has been the important purpose of CAN-SPAM?
Created the rules for how legitimate organizations send emails, including clear identification of the sender and a simple unsubscribe or opt-out.
Explain state telemarketing legislation.
More than half the states require that telemarketers get a license or register within the state. States also create their own DNC lists.
Describe the TSR rules on mispresentations and material omissions.
Must provide accurate and complete information about the products and services being offered; Must not omit any material fact, including 1. Cost and quantity 2. material restrictions and conditions 3. no refund policy details 4. Prize and promotion details 5. Credit care loss prevention program disclosures 6. Negative option features details
Explain requirements on how fax numbers can be obtained under the JFPA.
Senders wishing to rely on the EBR may collect fax numbers from new customers only (1) through voluntary communication of the fax number from the customer within the context of the business relationship; (2) from a directory or Internet site where recipients have voluntarily agreed to make fax numbers available for public distribution.
Junk Fax Prevention Act of 2005.
Specifically provides that consent can be inferred from an existing business relationship, and it permits the sending of commercial faxes to recipients based on an EBR, as long as the sender offers an opt-out in accordance with the act.
Video Privacy Protection Act
The Act forbids a video rental or sales outlet from disclosing information concerning what tapes a person borrows and buys, or releasing other personally identifiable information without the informed, written consent of the customer. The Act also requires such outlets to provide consumers with the opportunity to opt out from any sale of mailing lists. The Video Privacy Act allows consumers to sue for damages if they are harmed by violations of the Act.
Cable Television Privacy Act of 1984
The Cable Act establishes a comprehensive framework for cable regulation and puts forward strong protections for subscriber privacy by restricting the collection, maintenance and dissemination of subscriber data.
sender
anyone who initiates an email message and whose product or service is advertised or promoted by the message.
Explain who the FCC rules regarding MSCMs apply to.
The FCC's rules cover messages sent using Internet-to-phone short message service (SMS) technology, but do not cover phone-to-phone messages
What is the difference between commercial email messages and transactional or relationship messages?
The latter are messages whose primary purpose is to facilitate or confirm an agreed upon commercial transaction; provide warranty or safety information about a product purchased, provide certain information regarding an ongoing commercial relationship, provide information related to employment or a related benefit plan, deliver goods or services to which the recipient is entitled under the terms of an agreed upon transaction.
wireless domain registry
To help senders of commercial messages determine whether those messages might be MSCMs (rather than regular commercial e-mail), the FCC has created a registry of wireless domain names (available on the FCC website). It is updated on a periodic basis, as new domains are added
When should do not call requests be shared among divisions?
1. Whether there is substantial diversity between the operational structure of the divisions and 2. whether the goods or services sold by the divisions are substantially different from each other.
Explain basic rules governing how calls can be made under the TSR.
Calls can only be placed between 8 am and 9 pm and must display accurate caller ID information. Furthermore, the TSR includes specific rules about call abandonment, including the maximum percent of calls that can be legally abandoned, but there's another safe harbor for call abandonment. Once connected, sellers must promptly identify themselves and what they are selling, disclose all material information and terms and comply with special rules for prizes and promotions. They must also respect requests to call back and retain records for at least 24 hours.
Explain restrictions in TCPA on telemarketing calls.
Cannot have automatic telephone dialing systems that charge the person who answers the phone
Explain the basic allowable and non allowable uses of CPNI.
Carriers can use CPNI for to use, disclose or provide marketing offerings among service categories to which a customer already subscribes. Carriers can also use CPNI for billing and collections, fraud prevention, customer service and emergency services. Beyond those internal purposes, carriers can use and disclose CPNI only with customer approval—opt in—or "as required by law." Now there are ways in which CPNI can be used internally for marketing, billing, fraud prevention, customer service and so on. CPNI can be used internally for many different things but with regard to sharing it outside of the organization that's where the restrictions are much, many more restrictions exist. These other types of sharing or disclosures require customers to provide approval or the legal obligation would be as if there's some sort of subpoena or some other type of executive order to allow this information to be disclosed
DNC Safe Harbor
Set of conditions that sellers and telemarketers can put in place to reduce their potential legal liability. In order to qualify under the DNC Safe Harbor, a seller must written procedures that are specific to these different activities. The seller must provide training to its staff. The seller must identify how it's going to get the Do Not Call list and ensure compliance. Seller must have documentation, the persons or thepositions that are responsible and accountable, and must implement a program to monitor and enforce its policies. If a seller does all this, it can avoid fines if it inadvertently calls a number on the Do Not Call list.
Describe some of the most notable features of the CAN-SPAM act.
Some of the more notable features of CAN-SPAM include prohibitions on false or misleading headers and deceptive subject lines and requirements for a functioning return email address and a cost-free opt-out mechanism. In addition, all commercial email must include a clear and conspicuous notification that the message if, in fact, a commercial one and a valid physical address of the sender.
What is the abandonment safe harbor?
TM will not face enforcement if the telemarketer: Uses technology that ensures the abandonment of no more than three percent of all calls answered by a live person, measured per day per calling campaign; allows the telphone to ring for 15 seconds or four rings before disconnecting an unanswered call; plays a recorded message stating the name and telephone number of the seller on whose behalf the call was placed whenever a live sales representative is unavailable within two seconds of a live person answering the call; maintains record documenting adherence to the preceding three requirements.
Explain requirements on telemarketers of DNC.
Telemarketers are required to keep track of this list, updating their internal list on a monthly basis. In addition to telephone numbers on the Federal list, telemarketers are obligated to maintain lists of individuals who specific ask them not to call. Also, illegal to call numbers not on registry if the numbers weren't cross referenced.
Discuss the TSR rule on transmission of caller id information.
Telemarketers calls must transmit accurate caller identification information so it can be presented to consumers with caller ID services.
Explalin the TSR record-keeping requirements.
The following records must be maintained for two years from the date that the record is produced: (1) advertising and promotional materials (2) information about prize recipients (3) sales records (4) employee records (5) all verifiable authorizations or records of express informed consent or express agreement.
US West vs. Federal Communications Commission.
US West versus Federal Communications Commission, this was a situation in 1999 where a circuit court struck down the requirement to have express consent from the individuals involved in order to release their information whenever the organization was going to start using some other type of subcontracted agent to do work on their behalf. This is an example here of the type of notice that you can use in order to obtain explicit consent before sharing information for marketing.