DirecTV, CenturyLink Back Petitions to Clarify Rules for ‘Predictive Dialers’ Under TCPA
Petitions asking the FCC to deem the rules of the Telephone Consumer Protection Act inapplicable to “predictive dialers” received support from the telecom and marketing industries. Communications Innovators (CI)(http://xrl.us/bnz22s), CallAssistant (http://xrl.us/bnz22u) and Cargo Airline Association (http://xrl.us/bnz22o) filed petitions on informational calls to wireless consumers, operator-supervised prerecorded call segments and prerecorded calls to wireless phone numbers for shipment notifications, respectively. Comments were due Nov. 15.
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
CenturyLink agreed with CI’s petition and that clarification of the term “predictive dialer” is needed. The text of the TCPA and its associated legislative intent don’t align with the notion that predictive dialers without the “current ability to generate and dial random or sequential numbers, and such dialers that aren’t used for telemarketing purposes “should be deemed autodialers under the statute and the commission’s implementing rules,” the telco said (http://xrl.us/bnz2od).
Such dialers that aren’t used for telemarketing purposes “should be deemed autodialers under the statute and the commission’s implementing rules,” it said (http://xrl.us/bnz2od). When the FCC decided that predictive dialers were “autodialers” if programmed to call pre-established customer lists, there was market and manufacturer confusion and uncertainty “for companies that use predictive dialers to place calls for non-telemarketing purposes, most often in conjunction with live attendants,” CenturyLink said.
Many of the predictive dialers today “do not and cannot generate and dial random or sequential numbers,” CenturyLink said. Companies relying on this equipment usually aren’t telemarketers, it said. If a piece of equipment doesn’t have the existing capacity to generate random and sequential dialing, “or if automatic dialing equipment is used in a non-marketing context, the commission should declare that its use is not prohibited by the TCPA,” CenturyLink added.
DirecTV also said predictive dialers aren’t automatic telephone dialing systems subject to liability under the TCPA for non-marketing calls. It urged the commission to clarify that non-marketing calls made with equipment that could be programmed “to store or produce, and dial, random or sequential numbers should only be restricted where the dialer is actually programmed to place calls to random or sequential numbers,” (http://xrl.us/bnz2qq). The DBS company cautioned against subjecting companies with valid reasons to contact customers to TCPA-based litigation. It said it makes many kinds of non-marketing calls to customers using numbers provided by the customers. DirecTV said it can “segment and create call lists of hundreds of thousands ... of customers in like situations and to load all their numbers in telephone systems that then quickly contact the customers with information, notices and alerts.” The numbers aren’t randomly or sequentially selected, it added.
Global Tel Link supported all three petitions, saying the FCC’s expedited action on them will curb the “current skyrocketing TCPA class litigation environment” (http://xrl.us/bnz2r7). GTL said it uses interactive voice response notifications “to inform an individual when an inmate is attempting to complete a telephone call to that individual.” It’s the same notification method used by CAA and 3G Collect, which also filed a petition last year, GTL said: Such notifications “provide essential information to consumers, and are not telemarketing messages within the purview of the TCPA.” There’s no invasion of privacy resulting from informational notifications, GTL said. “The notifications serve the public interest.” GTL filed a petition in 2010, urging the FCC to declare that TCPA is “inapplicable to GTL’s use of automatic notifications before completing calls to certain persons dialed by prison inmates,” GTL’s petition said (http://xrl.us/bnz2tv).
The FCC should grant CI’s petition and “exclude research calls to cellphones from the TCPA requirements for express prior consent using an autodialer,” the Marketing Research Association said. MRA said the TCPA negatively impacts participation in research studies “by making it harder to reach half the nation’s households.” The “cell phone only population” is more likely to be younger, consist of a higher proportion of non-whites and have lower incomes compared to the landline population, it said. This population “will be under-represented in critical research areas, like political polling, unemployment measures” and healthcare access, MRA added.