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TCPA Safe Harbor: What Is It and Why Should You Be Aware of It?


The Team at CallMiner

January 08, 2016

Man with red cape holding laptop
Man with red cape holding laptop

In today’s digital world, maintaining compliance is of critical importance.  Not only can failure to protect consumer privacy result in serious fines and lawsuits for businesses, but it can also lead to a litany of issues on the consumer side (think back a few years to the Target data breach, which compromised the debit and credit card information of more than 70 million Americans).

For businesses making outbound calls to customers, the stakes are especially high.  Last year’s FCC Declaratory Ruling on the Telephone Consumer Protection Act (TCPA) presented such organizations with a new set of compliance challenges that protect consumer interest on consent to call but that increase the risk of TCPA liability for companies.

The Ruling itself is complex and lengthy, but the long and the short of it is this: Businesses have little choice but to ensure they have a solid understanding of what these new compliance rules mean.

Let’s explore how TCPA safe harbor factors into these new regulations – and how speech analytics can help:

What Is the TCPA?

Originally enacted in 1991 to protect consumers from growing numbers of unregulated telemarketing calls, the TCPA regulates calls made using an automatic telephone dialing system (ATDS), as well as certain artificial or prerecorded voice calls, notes a Bloomberg BNA article on TCPA history.

The 2015 FCC Declaratory Ruling, which introduces several key provisions to the TCPA, including its application to new technologies and modern methods of consumer outreach, has, however, complicated matters.  According to an MPS News summary, the new Ruling “dramatically—and impermissibly—expands the TCPA’s reach by broadening the statutory definition of ATDS and by adopting interpretations that create compliance impossibilities for well-intentioned businesses.”

What Does Safe Harbor Have to Do With It?

In lawsuits involving TCPA privacy or automated calling allegations, organizations can invoke a “good faith” or “safe harbor” defense to prove they have established and implemented reasonable practices and procedures to effectively prevent telephone solicitations in violation of the TCPA – and that subsequent calls have been sent as a result of an error.

But, in order to take such measures, a DMA article notes companies engaged in outbound telemarketing must do the following as part of their normal business practices:

  • Have in place written procedures
  • Conduct employee training on written procedures
  • Maintain and record a list of telephone numbers the organization may not contact (Do-Not-Call (DNC) lists)
  • Purchase and use federal DNC lists (i.e., the DNC list must be purchased, downloaded, and scrubbed against every 31 days)

How Can Speech Analytics Help Maintain Compliance?

One of the primary benefits of speech analytics software is its ability to analyze thousands of hours of calls and identify areas of compliance risk. While manual sampling of recorded calls or contacts provides little to no prevention of non-compliant behavior to protect businesses against litigation, CallMiner Eureka tracks every call for violations and risky language.

In addition to fully automating and scoring 100% of calls, speech analytics also helps to boost agent performance by uncovering issue root causes that managers can then use to create coaching and training initiatives (such as employee training initiatives listed above).

The end result? Agents who are able to work more effectively while remaining in compliance with TCPA regulations.

Final Thoughts

Businesses making outbound calls to customers face a new set of compliance challenges in light of an FCC Ruling that protects consumer interest on consent to call. Fortunately, TCPA safe harbor and speech analytics solutions can help to ensure organizations remain in compliance with TCPA regulations and avoid costly fines and litigations.

Risk Management & Compliance North America