May 10, 2023
Eric Troutman’s Insights on Recent FCC Rulings
In April 2023, Eric Troutman participated in a Flash AMA (Ask Me Anything) podcast hosted by Caller ID Reputation that addressed current FCC actions that affect telecom entities. Troutman, sometimes called the Czar of TCPAWORLD, is one of the country’s top class action defense lawyers, particularly when it concerns the Telephone Consumer Protection Act (TCPA) litigation and compliance.
Thus far, he has been the lead defense counsel in over 70 prominent TCPA class action suits and hundreds of individual TCPA cases. He is one of the most knowledgeable legal experts on all things TCPA related.
Contact Center Law Overview
In the AMA, Eric began by giving an overview of recent developments in contact center law. He noted that January and February 2023 had been the busiest time ever in this area, making it difficult for interested parties to keep up.
He focused, in particular, on the FCC’s actions against MV Realty and stated the FCC actually shut down PhoneBurner by accident. MV Realty has been repeatedly investigated for misleading homeowners into mortgaging their homes to the company. The FCC determined that these transactions were illegal and sent out a notification to all carriers warning them not to carry MV Realty calls. According to Troutman, the carriers misunderstood these communications to mean they could no longer use PhoneBurner, which effectively shut down the company, sending a shock through the entire industry. He later added, “So to me, there is a big black hole there.”
FCC Actions on “Steering”
In another development, the FCC is cracking down on what it calls “steering.” The federal government is demanding that website carriers use objective algorithms to list partners. They cannot be listed according to profitability or high lead generation. If they do, the FCC considers it a kickback to those companies. Instead, the partners need to be listed in alphabetical order or some other objective measure.
Perhaps the most important measures concern lead generation. The FCC’s new NPRM stated, “Prior express consent to receive calls or texts must be made directly to one entity at a time.”
Troutman clarified that this measure is restrictive, but it’s not the “industry killer” many fear. In fact, the express written consent may be to a single entity or multiple entities that are clearly associated. If the prior express written consent was to multiple entities, then all must be clearly displayed, at least on the same web page where the consumer is required to consent.
However, the FCC is considering requiring consumers to provide direct consent to the seller, which would effectively end lead generation as the industry knows it. If such a measure went into effect, it might truly be an industry killer.
Questions For Eric Troutman
Troutman took questions from participants, including one on the Samsung Sipa Case and other developments in potential wiretapping.
California’s Wiretapping Laws
California considers that using some automatic recording functions means committing eavesdropping because the recording begins before consumer consent is obtained. Also, a third party listening in on the call using chatbox technology or other measures could be considered wiretapping. While getting consent to record before beginning the recording and/or analytics process is awkward, it can and must be done to protect your company from litigation.
Another question concerned telephone solicitations in which something is rented or sold. Per Troutman, if it is done during an outbound call, it’s a marketing or solicitation call. Also, if you receive ancillary profits from the sale, it could be considered soliciting.
Florida’s Auto Dialing Laws
Troutman stressed that “DNC rules always apply” no matter what method you use to make a call. He noted that “it can be purely manual” and made from a desk phone and still fall under Florida’s autodialer rules if any system is telling your agent who to dial next. He also warned that anyone making a marketing call to Florida, which has some of the toughest communication laws in the country, must have prior written consent.
When responding to a question about cold-calling, he stated, “In this country, you can cold-call anyone not on the DNC list.” He clarified that this statement referred to laws at the federal level. Certain states, such as Florida, have severely curtailed cold-calling. He noted that all federal agencies, such as the FCC and FTC, adhere to the adage, “Thou shalt not harass consumers.”
Cold Calling Mobile Phones
He provided another important answer when he explained that the TCPA “applies to every cell phone in this nation.” Although the DNC only applies to residential lines, most phones are now used for both personal and professional business. That means you must be really careful when B2B cold calling. In addition, you must understand individual state laws to know if sending a text to sell something is allowed.
Evolving Telecom Legislation
In Troutman’s final thoughts, he stated there is “just a ton going on,” including a new congressional TCPA bill. He recommended everyone watch the Deserve to Win podcast on YouTube to stay current with the ever-shifting telecom situation. It’s free and continually updates all developments.