Hold the Phone: Unless You Have Written Permission

Thinking about making another collections call? You might want to think again. The Federal Communications Commission (FCC) ended the year with a bit of a surprise bang by releasing a rule implementing Section 8 of the TRACED Act. The new rule limits the number of non-marketing prerecorded calls made to residential landlines to three calls per 30 days without written consent.

Wait. What?

That’s right, the FCC made a rule that does not match the Consumer Financial Protection Bureau’s 7/7/7 rule under Regulation 7. This limit applies without regards to the number of accounts a consumer may have. There are several other caveats that are also in action with this new rule, including:

• All pre-recorded calls made without consent must contain an automated opt out mechanism.
• Calls answered by a live called party (including IVR/avatar calls), must include a single key punch opt out option.
• Pre-recorded or artificial voice messages left on a voicemail must include an 800 number where consumers can call to automatically opt out of future messages.

For healthcare providers subject to HIPAA, there is a little more flexibility in the rulings. Healthcare providers will be permitted to make up to three prerecorded calls in a week – with a limit of one call per day – to landlines without consent. The FCC set this calling limitation to specifically coincide with the existing rule allowing such organizations to call cell phones without consent for medical notifications. But just like other commercial calls, the FCC mandated that healthcare providers must offer an interactive opt out mechanism, either through a live keypunch functionality for answered calls, or an 800 number with a similar automatic opt out IVR when a message is left.

What’s the big deal with this change? Previously you’ve always had express consent from individuals you call, but under this new rule, you need express written consent to make these calls, no matter if they are no more than informational pre-recorded calls.

You’re probably wondering how you can avoid running afoul of this new ruling. Americollect has a few suggestions to help your facility ensure you’re meeting the requirements.

The first and most important step to take is to ensure your consent to treat agreements are updated to include language around this rule. We recommend the best practice of the following language:

You agree to receive pre-recorded/artificial voice message calls and/or use of an automatic dialing device, text messages and/or emails from YOUR ORGANIZATION, our partners, subcontractors, or any and all other companies that we may have to transfer your account to at any telephone number or email address that you have provided us or that we have otherwise obtained, which could result in charges to you.  We may place such calls, texts or emails to (i) notify you regarding upcoming appointments; (ii) notify you of results; (iii) troubleshoot problems with your account (iv) resolve a dispute; (v) collect a debt; or (vI) as otherwise necessary to service your account or enforce this admissions agreement, our policies, applicable law, or any other agreement we may have with you.

The ways in which you may provide us a telephone number or email address include, but are not limited to, providing the information at account opening, adding the information to your account at a later time, providing it to one of our employees, providing it to our partners, subcontractors, or any and all other companies that we may have to transfer your account to, or by contacting us or our partners, subcontractors, or any and all other companies that we may have to transfer your account to from that phone number or email address. If a telephone number provided to us is a mobile telephone number, you consent to receive SMS or text messages at that number. Standard telephone minute and text charges may apply if we contact you. You may revoke this express consent at any time by calling us at: XXX-XXX-XXXX.

If there’s a situation where you are unable to use the above language, there are four things that you need to have in your contract (at a minimum) to help keep you safer.

• Consent to receive calls and text to ALL numbers provided (do not limit it, and make sure it doesn’t just say “wireless”)
• Consent to receive pre-recorded/artificial voice messages
• Consent to receive emails
• Consent to transfer numbers to partners, subcontractors and other companies (like Americollect)

There is still hope that this rule will not go into effect. According to an article in The National Law Review, a group of trade associations has formally asked the FCC to issue an erratum correcting the rule. The group pointed out that in amending the language in one section of the FCC’s rules the agency’s order did so, “in a manner that appears to inadvertently impose a prior express written consent requirement on informational pre-recorded or artificial voice calls to a residential number made outside of the” codified exemptions.

The group explained that imposing this written consent requirement was an error because it conflicts directly with the text of the order and other codified regulations in Section 64.1200. The goal of the group is for the FCC to issue an erratum to maintain “prior express consent” as the level of consent required for an informational pre-recorded or artificial voice call to a residential number that is placed outside of the codified exemptions.

While the FCC has not responded, Americollect will continue to monitor the situation. We suggest making the recommended changes to your consent and contract forms to be ready no matter the outcome.