Technology and IP Forum
Back to School Marketing Primer –
Marketing Through Technology, What is
Allowed and What Isn’t?
© Ifrah PLLC (202) 524-4140 / ifrahlaw.com
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SPEAKERS
Michelle Cohen
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Member, Ifrah PLLC
Over Two Decades Of Marketing Law
Experience, Including TCPA Counseling And
Defense Since FCC First Implemented Law.
Clients Include Large Call Centers, Retail
Companies, Online Retailers
Has Defended TCPA Class Actions/FCC And
FTC Enforcement Actions/State AG
Investigations
Obtained Rescission Of FCC TCPA Citation On
Behalf Of Messaging Provider
Counsels Clients Daily On Marketing Strategies
Crafts And Assists In Implementation Of
Sweepstakes/Contests And Other Promotions
Certified Information Privacy Professional – U.S.
© Ifrah PLLC (202) 524-4140 / ifrahlaw.com
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SPEAKERS
Chris Oatway
Assistant General Counsel, Verizon Legal
Department
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Chris Has Represented Verizon On Key
Communications Industry Issues Before The Federal
Communications Commission, Congress, The Courts,
And State Regulators.
Current Portfolio Includes Consumer Protection,
Spectrum Auctions And Spectrum Sharing Initiatives,
And Transaction Approvals.
Prior To Verizon, He Spent Several Years In Private
Practice In Washington, DC, With Covington &
Burling, Where He Focused On Antitrust And Other
Complex Litigation.
After Graduate School And Before Studying Law,
Chris Was A Senior Analyst At An Economic
Consulting Firm Where He Provided Economic
Analyses For Antitrust Litigation And Analyzed
Mergers Under Review By U.S. And Foreign
Regulators.
He Is Fluent In Spanish And Has Written And
Presented On Mexico's Regulatory Regimes.
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SPEAKERS
John B. Adams
Deputy Chief, Consumer Policy Division,
Consumer and Governmental Affairs Bureau, FCC
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John B. Adams Is Deputy Chief Of The Consumer Policy
Division Within The Federal Communications
Commission’s Consumer And Governmental Affairs
Bureau.
In That Capacity, He Is Responsible For Policy-Oriented
Proceedings, Including Rulemaking And Declaratory
Ruling, Arising Under The Telephone Consumer
Protection Act.
Previously, He Served In Staff And Leadership Positions
At The FCC, Was In-House Counsel At A
Telecommunications Company, Was A Partner In A DC
Telecommunications Law Firm, And Was Founder And
Principal Of A Telecommunications Boutique Law Firm.
In Addition To A Law Degree, He Holds An MBA And A BS
In Economics.
*Mr. Adams Did Not Participate In Preparation Of The
Written Presentation Used During This Panel Discussion.
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LEARNING TCPA THE HARD WAY…
$10 Million Settlement
$10 - $15 Million Settlement
$40 Million Settlement
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Telephone Consumer Protection Act (“TCPA”) – The Basics
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“TCPA” – Enacted In 1991 – To Stop
Abusive/Cost-Shifting
Telemarketing Practices. 47
U.S.C.§227
Rules Implemented By Federal
Communications Commission
(“FCC”) – First Rules 1992,
Continue To Revise/Clarify. 47
C.F.R.§64.1200
Enforced By FCC, State Attorney
Generals, Private Lawsuits –
Including CLASS ACTIONS
Statutory Damages $500 Per
Text/Call; “Trebled” If “Deemed
Willful”
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What Does TCPA Cover?
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Makes Unlawful Certain Uses Of
Calls/Faxing
Some Provisions Not Limited To
Telemarketing – Cover All Calls
Some Provisions Not Limited To
Residential/Consumer Contacts
Depends On The Technology And
Who Is Being Called
Also Includes “Do Not Call”; Calling
Time Restrictions
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What Does TCPA Cover? – Cont’d
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“Special” Lines - Includes Mobile Numbers (Can Be Business Or Residential)
– Unlawful To “Make Any Call” Using Any “Automatic Telephone Dialing System”
Or “Artificial Or Prerecorded Voice” Unless “Emergency Purpose” Or “Prior
Express Consent” Of Called Party
– “Calls” Include Texts Per FCC
– 2012: FCC Clarified – If Telemarketing To These Numbers – Need Prior Express
Written Consent (27 FCC Rcd. 1830)
– If Informational Call – e.g., "Comcast Will Be At Your House Between 1-3pm For
Service” – Prior Consent Can Consist Of Person Providing Phone Number
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What Does TCPA Cover? – Cont’d
• “Automatic Telephone Dialing
System” – Heavily Litigated
Term
– Defined In TCPA As:
“Equipment Which Has The
Capacity To:
• Store Or Produce
Telephone Numbers To
Be Called, Using A
Random Or Sequential
Number Generator; And
• To Dial Such Numbers”
(47§U.S.C. 227(a)(1))
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Recent Clarifications
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In July, FCC Released “Declaratory Ruling And Order” Resolving A Number Of
Petitions (FCC Release – FCC 15-72)
Some Key Clarifications:
Autodialers – Dialing Equipment Meets Definition If It Has Capacity To Store Or
Produce, And Dial Random Or Sequential Numbers, Even If Not Presently Used For
That Purpose
Autodialers Need Only Have The Capacity To Dial Random And Sequential
Numbers, Rather Than The Present Ability To Do So
Equipment That Lacks “Present” Capacity To Dial Randomly Or Sequentially Not
Exempt
• If In Doubt, Assume Autodialer
– Means – If Calling/Texting Mobile – Need Consent
– If Telemarketing – Need Prior Express Written Consent
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Recent Clarifications – Cont’d
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Special Exempted Calls
– Time-sensitive Financial And Healthcare Issues
• Fraud/Identity Theft Risks/Possible Data Breaches/Steps To
Take To Prevent Or Remedy Harm Caused By Data
Breaches/Actions Needed For Money Transfers
• Provision Of Phone Number To Healthcare Provider – Prior
Express Consent For Calls Subject To HIPPA
• Wireless Number Provided By Customer
• Call Not Charged To Recipient
• No Telemarketing
• Concise – 1 Minute Or Less For Voice And 160 Characters For
Texts
• No More Than 3 Messages Per Event Over 3 Day Period
• Easy Means Of Opt-Out
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What Does TCPA Cover? – Cont’d
• Residential Lines – Unlawful To Initiate A Call Using An Artificial Or
Prerecorded Voice To Deliver Message Without The Prior Express Consent
Of Called Party (Unless Emergency Or Exempt)
– 2012 – FCC – If Telemarketing – Must Have Prior Express Written
Consent (Like Wireless). No Longer “Existing Business Relationship” Or
Consent
– If Non-Telemarketing “We Are Calling To Confirm Your Appointment At
3pm Tomorrow” Do Not Need Consent
– If Autodialed, But Live Caller – Even If Telemarketing, No Consent
(Different From Wireless) (But May Need DNC Scrub)
• Burden Always On Calling Party To Prove Consent
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Prior Express Written Consent
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What Is “Prior Express Written Consent?” (47 CFR 64.1200(f)(8))
– An Agreement, In Writing, Bearing The Signature Of The Person Called That Clearly
Authorizes The Seller To Deliver To The Person Called Advertisements Or
Telemarketing Messages Using An Automatic Telephone Dialing System Or An
Artificial Or Prerecorded Voice, and
– The Telephone Number Authorizing Advertisements Or Telemarketing Messages To
Be Delivered.
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Prior Express Written Consent – Cont’d
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Must Include A Clear And Conspicuous
Disclosure Informing Consenting Party:
– By Executing The Agreement, Such
Person Authorizes The Seller To
Deliver Or Cause To Be Delivered
Telemarketing Calls Using An
Automatic Telephone Dialing
System Or An Artificial Or
Prerecorded Voice; And
– The Person Is Not Required To Sign
The Agreement (Directly Or
Indirectly), Or Agree To Enter Into
Such An Agreement As A Condition
Of Purchasing Any Property, Goods,
Or Services.
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Recent Clarifications – Consent
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Consent – Reassigned Numbers
– If Call Without Knowledge Of
Reassigned Numbers And Believe
Have Valid Consent To Make Call Should Be Able To Initiate One Call
After Reassignment To
Opportunity To Gain Actual Or
Constructive Knowledge Of
Reassignment.
– Suggestions For Reassigned Numbers
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Prior Express Written Consent – Cont’d
• How To Get “Prior Express Written
Consent”?
– Many Companies Have Put In Terms
– Would Need To Be Affirmative
Acceptance – Not Just Fine Print
– Signature Includes Electronic Signature
– e.g. Website Form, Keypress Voice
Recording
– Recent Citations To Lyft/First National
Bank
• Lyft – People Couldn’t Opt-out And
Use The Services
• FNB – Had To Agree To Receive Texts
In Order To Use The Services/Didn’t
Inform People They Could Opt-out
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Consent - Example
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Consent– Cont’d
REMEMBER!
– Consent Can Always Be Revoked
– Once Revoked, May No Longer Call – Put On
Company-Specific “Do Not Call”
– Does Not Matter That A Number Is Not On The
Federal Do Not Call Or That Someone Does
Business With Company
– Also Beware “Mixed Messages” If “Informational
Call/Text Has Marketing
– Don’t Exceed Consent (e.g., Buffalo Bills Case)
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If You Have The “Right” Consent” And Call With Telemarketing, Need Automated
Opt-Out
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What Does TCPA Cover? – Cont’d
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Unsolicited Fax Advertisements – Also Prohibited
(Covers Business And Home/Consumer)
– Exceptions
• Established Business Relationship
• Consent
– Opt-out Notice Requirements
– Once Opted-out, Cannot Rely On Existing
Business Relationship
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Do Not Call Registry
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How Does The “Do Not Call” Registry Work?
– Federal DNC Coordinated Between FCC/FTC Under TCPA And Telemarketing
Sales Rule
– Covers Residential And Mobile (Not Business Numbers)
• If Making “Non-Special” Telemarketing (No Autodialed/Prerecorded To
Mobiles, No Prerecorded Telemarketing To Residential Lines) Calls – e.g.,
Live Call To Residential Number – Need To Scrub Federal DNC (And States)
Unless:
– Existing Business Relationship (3 Month-Inquiry/18 Month Purchase)
– Consent
– Also “Company-Specific” Do Not Call
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Top 10 TCPA/Marketing Tips
1. Be Alert To Types Of Communications Being Used: Phone/Email/Texts/
Sweepstakes & Combinations
2. Remember – Some Parts Of The TCPA (Mobile) Apply To All Calls – Not Just
Telemarketing
3. Assess Current Status Of Consents – How Being Obtained? Does Language
Comply With “Prior Express Written Consent” Where Needed? Does Language
Specifically Cover Your Company?
4. Third Party Marketers/Affiliates/Callers – How Supervised?
5. Are Procedures In Place For Company-Specific Do Not Call List?
6. Review Procedures For Opt-outs – Test to Make Sure They Work
7. Is Company Scrubbing Federal/State Do Not Call Databases Where Needed?
8. Are Procedures In Place For Flagging Potential Smaller Problems Before They
Become Bigger Problems?
9. Consider Periodic Confirmations Of Contact Numbers When Have A Customer
Contact – Have CSR Confirm Numbers In Your Database.
10. Check Insurance Coverage/Indemnification Provisions
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Other “Hot” Marketing Topics
• Can Spam – Sending Commercial Emails (15 U.S.C.§7701 et seq.)
– You “Can” Send Commercial Emails, Provided They Comply With
Can Spam
– No Deceptive Subject Lines/Headers
– Opt-Out Mechanism – And Implement
– Postal Address
– Designate Ad Or Commercial Solicitation
– More Limited Private Right Of Action
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Other “Hot” Marketing Topics
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FTC: Ban On False/Deceptive Ads Applies Online, Apps, Social Networks, etc.
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FTC Endorsement Guidelines – Need To Disclose If Company Has Paid Endorser,
Provided Benefit, etc.
– Example – “Mommy” Bloggers - Products To Try
– “Advance” “Beta” Launch Of Product With Discount
– Sweepstakes Entry
1. Lisa LillienVerified account @HungryGirl Jul 30
Celebrate #NationalCheesecakeDay for a month w/ me & @FiberOne. Enter @FiberOne sweeps on
your computer! http://on.fb.me/1ODAJ6d #sponsored
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Other “Hot” Marketing Topics
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Sweepstakes/Contests
– Prize, Chance, Consideration – Could Be
Illegal Lottery/Gambling
– Contest – Prize, No Chance, Possible
Consideration
– Sweepstakes – Prize, Chance, No
Consideration
Alternative Means Of Entry (AMOE)
No Purchase Necessary To Enter Or Win
Do Not Require Lengthy Surveys Or Other
Onerous Tasks
Internet Entries OK
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Other “Hot” Marketing Topics
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Some States – Require Advance
Registration/Bonding
– Florida And NY – If Prizes Exceed
$5,000; Rhode Island – If Retail In
State
Terms And Conditions
– Make Clear – Dates Of
Sweepstakes/Contest, Who Is
Eligible/Ineligible/How To
Enter/How Many Entries/How And
When Chosen/Conditions – Such
As Returning Eligibility Documents
Twitter/Facebook/Other Social
Networks Have Own Rules – e.g.,
Stating Non-Affiliated And Releasing
Them
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Have You Ever Dealt With A TCPA Issue?
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THANK YOU!
QUESTIONS?
website: ifrahlaw.com
email: michelle@ifrahlaw.com
twitter: @MichelleWCohen
blogs: www.FTCbeat.com &
www.CrimeInTheSuites.com
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