Legal Update: October 2013

Legal Update: October 2013
Solar Telemarketing and the Telephone Consumer Protection Act of 1991

Most successful solar companies utilize telemarketing within their marketing and sales process in order to effectively promote their products to potential customers (leads) and close deals. Whether a lead has been sourced from a company’s branded campaigns or through third party lead vendors, converting a lead into a buying solar customer usually requires multiple telephone-based communication events between a knowledgeable sales person and the lead.

On October 16, 2013, new telemarketing laws went into effect that substantially changes how advertisers conduct their telemarketing campaigns. Whereas in the past, solar marketing and sales management could focus exclusively on the return on investment from consumer telemarketing activities, now telemarketing compliance is a critical part of risk management and financial consideration. Below we summarize some of the new rules to raise awareness for solar companies to devise strategies and systems to comply with the changes.

Overview

Last year, the Federal Communications Commission (“FCC“) amended certain rules under the Telephone Consumer Protection Act of 1991 (“TCPA“) to place additional restrictions on telemarketing calls and text messages by advertisers. Solar companies and their marketing and sales partners fall under the definition of advertisers. Effective October 16, 2013, any advertiser engaged in telemarketing will need “prior express written consent” to place artificial or prerecorded telemarketing calls to a residential phone line or wireless number, or to send text messages or place calls to a wireless number using an automatic telephone dialing system.

This means that any company that uses an automatic telephone dialing system or sends out pre-recorded messages will need to make sure that they have received the proper heightened consent from a consumer lead before they can begin their telemarketing activities, even if that consumer lead has opted in to receive information from the advertiser in the past. Advertisers will need to review all lead sources, internal or from third party lead vendors, to make sure that the proper consent has been received prior to calling that lead.

Defining Prior Express Written Consent

Under the old TCPA rules, advertisers could place calls to wireless numbers using an automatic telephone dialing system or send artificial or prerecorded messages if they had received “prior express consent” from that consumer. Advertisers could obtain “prior express consent” orally or impliedly through a consumer’s conduct. For example, the FCC concluded that an advertiser obtained “prior express consent” from a consumer when the consumer previously and voluntarily provided his or her phone number to the advertiser. Simply put, it was much easier for advertisers to obtain the proper level of consent from consumers prior to running their telemarketing campaigns.

The new TCPA rules have changed the consent requirements substantially and now require advertisers to obtain “prior express written consent” for all (1) autodialed and/or prerecorded calls/texts sent/made to cell phones and (2) prerecorded calls made to residential land lines for marketing purposes.

The revised TCPA Rules define “prior express written consent” as “an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.”

Accordingly, written consent must include a “clear and conspicuous” disclosure notifying the potential call recipient that by signing the agreement: (1) the consumer will receive future calls that deliver autodialed and/or prerecorded telemarketing messages on behalf of a specific advertiser(s); (2) that the consumer’s consent is not a condition of purchase. Please note that the consumer must designate a phone number at which to be reached (this field should not be pre-populated) and the disclosure language must identify the advertiser(s) that may be calling the consumer when consent is provided.

To account for an increasingly digital commercial world, advertisers may receive an individual’s legally recognizable digital or electronic signature provided it conforms to the E-SIGN Act. This means that a properly placed “opt in” statement on a webpage with clear consent language may satisfy as the compliance and written consent obligation.

Autodialing and RoboCalling

The new TCPA rules require “prior express written consent” only where you use an automatic telephone dialing system or send pre-recorded messages to wireless numbers or send pre-recorded messages to residential landlines. It is important to understand what constitutes an automatic telephone dialing system and a robocall.

The FCC defines an automatic telephone dialing system, or an “autodialer”, as one that can produce, store and call telephone numbers using a random or sequential number generator but may also include preview dialers, click-to-call systems or any other technology that can store phone numbers and dial them without human intervention. The FCC typically has interpreted this definition broadly and may deem a calling software an autodialer if it has the capacity to do the above even if the random or sequential dialing mechanisms are disabled. For example a standard CRM system with a click-to-call function may constitute an autodialer under FCC definitions.

A prerecorded message, or a robocall, is a phone call that uses an “autodialer” system to deliver a prerecorded telemarketing message. Common terms for this are voice broadcasting or call blasting.  If you are unsure whether you are using an autodialer or are truly dialing manually, consult with an attorney who has expertise in telemarketing law.

Damages

Fines for violations under the new TCPA rules can be extremely costly. The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call or message based on whether the defendant “willfully” or “knowingly” violated the TCPA.  Potential damages can accumulate very quickly considering that many telemarketing campaigns often involve thousands, or millions, of calls.  

Furthermore, the advertiser bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive telemarketing calls to the number provided. In the case of Internet based consents, evidence of consent may include, without limitation, web pages that contain the consent language, screenshots of the consent web page as seen by the consumer where the phone number was inputted, data record of all information submitted by the consumer, date and time stamps as well as the consumer IP address.

Impact

For many advertisers, including solar companies, telemarketing is the foundation of their marketing and sales efforts. However, the new TCPA rules have made telemarketing not only more difficult but also much riskier as wireless (and ported wireless numbers) comprise more and more of the available callable numbers or numbers submitted by consumers online. As a result, advertisers may be unaware of whether they are even calling wireless numbers.

It is important for all advertisers who make telemarketing calls using automatic telephone dialing systems to review their marketing and sales practices. Materials should be updated to make sure that when a consumer opts in to receive information from their company, that the consumer is providing the proper consent to receive a sales call from the advertiser. Furthermore, any advertiser that relies on historical data for its sales efforts will need to review the source of that data to either scrub out wireless numbers or make sure the proper consent was obtained. Finally, advertisers will need to make sure their third party lead vendors are also compliant as liability under the TCPA attaches to the entity that places the call to the consumer.

If you have any questions, please contact Reggie Norris at Clean Energy Experts at 888-630-6690 or by email at reggie@cleanenergyexperts.com.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each marketing situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced telemarketing attorney.

About Clean Energy Experts

Clean Energy Experts provides high quality real-time customer leads, performance marketing and software solutions to solar, energy, and home improvement companies. Our mission is to accelerate the adoption of cost-effective environmentally beneficial energy solutions and lower customer acquisition costs.  Clients can access the largest volume of pre-qualified solar leads in the U.S.A. in our bid marketplace, which was developed in part through an award from the U.S. Department of Energy’s SunShot program.. To learn more about how Clean Energy Experts can help grow your business profitably, please visit www.cleanenergyexperts.com.