Important Notice for Alarm Companies: FCC Clarifies TCPA Restrictions on Robocalling

On July 10, the FCC clarified its Telecommunications Consumer Protection Act (TCPA) rules regarding robocalling. The Declaratory Ruling is effective upon issuance, so to the extent that it impacts any practices currently being followed by alarm companies, they should adjust those practices immediately.

To summarize, the following rulings should be observed by alarm companies:

  1. Text messages are “calls” subject to TCPA. Alarm companies should be aware that sending a text instead of a call does not sidestep TCPA violations.
  2. A called party may revoke consent at any time and through any reasonable means. Alarm companies that use autodialers must keep clear records and take revocations of consent very seriously.
  3. If the wireless number a customer gave you is reassigned to someone else, you MUST stop calling it after the first time you discover the change. Because it is up to the company to be able to demonstrate that it did not have actual or constructive knowledge of reassignment, alarm companies that use any type of autodialing must pay close attention to the numbers they dial and any communications they receive from their customers that may indicate the number has been reassigned.
  4. Internet-to-phone text messages require consumer consent. An alarm company that may be using software to automatically contact customers is still considered to be “autodialling,” even though it is not using a phone, and must be sure to have the customer’s consent.

Read on for complete details. Thanks to AICC chair Lou Fiore and CSAA Counsel John Prendergast for this report.

On July 10, 2015, the FCC released an Omnibus Declaratory Ruling and Order clarifying numerous issues concerning the application of the Telecommunications Consumer Protection Act (TCPA) and providing guidance on whether certain conduct violates the TCPA.  (CG Docket No. 02-278, WC Docket No. 07-135).  The Omnibus Declaratory Ruling is effective upon issuance, so to the extent that it impacts any practices currently being followed by alarm companies, they should adjust those practices immediately.

At the outset, we note that the Omnibus Declaratory Ruling does not deal with the Petition for Expedited Declaratory Ruling filed by the Edison Electric Institute and the American Gas Association, on which AICC commented earlier this year. In that petition, EEI and AGA sought clarification that non-emergency, service-related telephone calls and text messages made by utilities are not in violation of the TCPA. AICC filed comments in support, with the caveat that the clarification be broad enough to cover the kind of service-related messages that alarm companies typically send to their customers. While the Omnibus Declaratory Ruling does clarify one particular aspect related in the petition, the clarification seems to apply to financial and healthcare institutions rather than the alarm industry.

Specifically, the FCC exempts from the TCPA’s consumer consent requirements, messages about time-sensitive financial and healthcare issues and then only under certain conditions. “Time-sensitive financial issues” include calls made by financial institutions intended to prevent fraudulent transactions or identify theft, calls involving data security breaches and calls conveying measures consumers may take to prevent identity theft following a data breach. “Healthcare issues” include calls made by healthcare institutions regarding appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.  While this clarification is limited in scope, we are hopeful that it sets the table for a later application to appointment reminders, etc. by other industries, including alarm companies.

Other issues addressed by the Commission that may impact the alarm industry include:

  1. Applicability of TCPA to Text Messages. Text messages are “calls” subject to the TCPA, as previously determined by the Commission.Consumer consent is required for text messages sent from text messaging apps that enable entities to send text messages to all or substantially all text-capable U.S. telephone numbers, including through the use of autodialer applications downloaded or otherwise installed on mobile phones. AICC should ensure that its members are all aware that sending a text instead of a call does not sidestep TCPA restrictions.
  2. Revocation of Consent. The FCC clarifies that a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur. Further, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent. Alarm companies that use autodialers must keep clear records and take revocations of consent very seriously. Alarm companies that specify a method of withdrawing consent must understand that other methods of withdrawing consent cannot be denied. For example, if a customer calls a service representative and asks to be removed, a court could reasonably find consent successfully revoked, even if the service representative is not capable of addressing the issue and/or fails to communicate the request to someone who can. Continued autodialing after revocation of consent can result in trebling of the already-steep $1,500 per violation penalty for continued autodials.
  3. Reassigned Wireless Numbers. Calls to reassigned wireless numbers violate the TCPA when a previous subscriber, not the current subscriber or customary user, provided the prior express consent on which the call is based. The consumer assigned the telephone number dialed and billed for the call (or the non-subscriber customary user of a telephone number included in a family or business calling plan) can give prior express consent to be called at that number. However, where a caller believes he has consent to make a call and does not discover that a wireless number had been reassigned prior to making or initiating a call to that number for the first time after reassignment, the FCC finds that liability should not attach for that first call, but the caller is liable for any calls thereafter.  This is the equivalent of the “every dog is entitled to one bite” rule in tort liability.  However, the caller, and not the called party, bears the burden of demonstrating: (1) that he or she had a reasonable to basis to believe there was consent to make the call, and (2) that he or she did not have actual or constructive knowledge of reassignment prior to or at the time of this one-additional-call window we recognize as an opportunity for callers to discover reassignment. Because it is up to the company to be able to demonstrate that it did not have actual or constructive knowledge of reassignment, alarm companies that use any type of autodialing must pay close attention to the numbers they dial and any communications they receive from their customers that may indicate the number has been reassigned. Just recently, Time Warner Cable was found in violation of the TCPA and the plaintiff was awarded treble damages because she told Time Warner Cable the person they were attempting to contact was not at this number and they did not stop calling.

Even for this one free call, the burden is on the business to show that it once had permission to call the number and did not know about the reassignment.  Treble damages apply for violations

The FCC also clarified that the fact that a consumer’s wireless number is in the contact list on another person’s wireless phone, standing alone, does not demonstrate consent to autodialed or prerecorded calls, including texts. This typically involves an app that goes through the consumer’s contact list and auto-invites the contacts to download the app as well, and we suspect it’s not an alarm industry practice.

  1. Internet-to-Phone Text Messages: Internet-to-phone text messages require consumer consent. Alarm companies that may be using software to automatically contact customers is still considered to be autodialing, even though it is not using a phone, and must be sure to have the customers consent.

            The Commission also addressed the following issues:

Definition of an Autodialer. Any equipment that has the requisite “capacity” to dial random and sequential numbers is an autodialer and is therefore subject to the TCPA.  Callers cannot avoid obtaining consumer consent for a robocall simply because they are not “currently” or “presently” dialing random or sequential phone numbers.  The FCC acknowledges, however, that the definition of “autodialer” does not extend to every piece of malleable and modifiable dialing equipment that conceivably could be considered to have some capacity, however small, to store and dial telephone numbers.  For example, a handset with the mere addition of a speed dial button is not an autodialer.  Further, there must be more than a theoretical potential that the equipment could be modified to satisfy the “autodialer” definition.  Thus, the FCC states that although it might be theoretically possible to modify a rotary-dial phone to such an extreme extent that it would satisfy the definition of autodialer, “such a possibility is too attenuated for us to find that a rotary-dial phone has the requisite “capacity” and therefore is an autodialer.”

Call-Blocking Technology. The Communications Act and the FCC’s rules do not prohibit carriers or Voice over Internet Protocol (VoIP) providers from implementing consumer-initiated call-blocking technology that can help consumers stop unwanted robocalls.

Collect Calls. With regard to collect call services, the FCC clarifies that, where a caller provides the called party’s phone number to a collect call service provider and controls the content of the call, he is the maker of the call rather than the collect-call service provider who connects the call and provides information to the called party that is useful in determining whether he or she wishes to continue the call.

Additionally, collect calling service providers that use prerecorded messages, on a single call-by-call basis, to provide call set-up information when attempting to connect a collect call to a residential or wireless telephone number may do so under the TCPA without first obtaining prior express consent from the called party.  The person who dials the number of the called party or the number of a collect calling service provider in order to reach the called party, rather than the collect calling service provider who simply connects the call, “makes” the call for purposes of the TCPA.

Platform Provider Liability. Whether a person who offers a calling platform service for the use of others has knowingly allowed its client(s) to use that platform for unlawful purposes may be a factor in determining whether the platform provider is so involved in placing the calls as to be deemed to have initiated them.

 

Advertisements

Annual Attrition Measurement Study Available to CSAA Members

Got a minute? Find out how you can participate in an important alarm industry initiative — as well as access information that can help you build your company.

TRG Associates, a CSAA member company, works with CSAA each year to produce an alarm industry attrition report. View our one-minute video for more information.

Ready to participate? Visit Attrition Project.

2015 CSAA Marketing MARVEL Award Winner is COPS Monitoring

CSAA International announced the winner of the CSAA 2015 Five Diamond Marketing MARVEL Award on June 25 at the Electronic Security Expo (ESX) in Baltimore, MD. COPS Monitoring was honored for promoting its CSAA Five Diamond status to gain a competitive edge in the marketplace.

The CSAA Five Diamond Marketing MARVEL Awards Program recognizes CSAA Five Diamond companies that have used their CSAA Five Diamond designation to better position themselves in the marketplace. This program is sponsored by Security Sales & Integration (SSI).

_DSC0494

Left to right: CSAA President Pam Petrow, COPS Monitoring Director of Marketing David Smith, and SSI Editor-in-Chief Scott Goldfine. Photo by A Day in the Life Productions.

“We are proud to be named as this year’s Marketing MARVEL Award winner,” said David Smith, Director of Marketing for COPS Monitoring. “We work hard behind the scenes every day for our dealers helping to safeguard their customers and hard-earned reputations. We believe when we win, our dealers win. We hope that proudly advertising our network of CSAA Five Diamond central stations and being named last year’s Central Station of the Year not only help give our dealers peace of mind, but also contribute to their competitive edge in the marketplace.”

The company submitted an integrated marketing plan that prominently featured their CSAA Five Diamond status on advertising, newsletters, their website, exhibits, company overview, sales literature, and even business cards.

“CSAA is pleased to recognize COPS for their exemplary and creative efforts to use their Five Diamond status to increase their visibility in the marketplace,” said CSAA Executive Director Jay Hauhn. “When our CSAA Five Diamond companies spotlight their certification through public promotion, consumers become more aware of how important it is to choose high-quality professional monitoring. Congratulations to COPS for making Five Diamond such an important part of their marketing plan!”  

Read complete details. 

– Reported by Elizabeth Lasko, CSAA, July 17, 2015

Centennial, CO Alarm Operator Who Saved Aurora Woman from Attacker Wins National Award

Susan Farris of Security Central in Centennial was recognized June 25 as the Central Station Operator of the Year by the national Central Station Alarm Association (CSAA).

_DSC0800 cropped and resized

L-R: CSAA President Pam Petrow, Susan Farris, and SDM Editor Laura Stepanek. Photo by A Day in the Life Productions.

The annual CSAA Excellence Awards, co-sponsored by SDM Magazine, highlight members of the security and fire alarm industry who make outstanding contributions to the safety and welfare of the customers they serve. Ms. Farris accepted her award at the annual CSAA awards banquet, held this year in Baltimore, MD. She was noted for her role in saving an Aurora woman from an armed assailant during a home invasion spree.

“We are very proud of Susan. Her quick action and expertise gave our client the advanced warning she needed to defend herself when the knife-wielding intruder barged through her bedroom door,” stated Jordan Jackson, president of Security Central.  He continued, “All of our Quick-C.A.R.E. Responders know that any alarm signal we receive could represent a life or death situation, so every second counts.”

Kathy Taillon, the victim of the home invasion, still shudders when she recalls the incident, “I hate to think what would have happened to me if I hadn’t had my alarm on.”

The intruder broke into three homes in an Aurora townhome complex the night of September 1, 2014, attacking and assaulting two other women before being arrested as he fled Taillon’s home.

Farris, in her typical humble fashion, reacted to her award by saying, “I’m shocked! I was just doing my job. It is really Security Central that deserves the award. Any one of my teammates would have done the same thing.”

Security Central provides electronic security and fire alarm solutions and monitoring services from their 24-hour Quick-C.A.R.E. facility near I-25 and Arapahoe Rd. For more information, visit securitycentralinc.com.

CSAA Leaders Listen to the “Voice of the Customer” at ESX 2015

CSAA’s new “Voice of the Customer (VoC)” initiative will lay the foundation for the future direction of CSAA. The special work group meetings held on June 23 in Baltimore were the first exciting opportunity for members to participate in the early stages of this initiative. Dozens of members attended meetings to discuss the unique membership needs of the Owner-Operated / Regional, National, Contract Monitoring, Proprietary, and Associate “sectors.”

CSAA member Brandon Freedman was on hand to snap photos of the members who arrived at ESX early to participate in VoC.

Following the meetings, CSAA staff compiled notes from each group’s discussion and searched for commonalities and critical action items. A full report was to be made available to all members for comment.

DSC_2844DSC_2847DSC_2848DSC_2862DSC_2870DSC_2871DSC_2874DSC_2877DSC_2888DSC_2889DSC_2893DSC_2894

2015 CSAA Excellence Awards Winners

CSAA International announced the winners of the CSAA 2015 Excellence Awards on June 25 at the Electronic Security Expo (ESX) in Baltimore, MD. The winners are:

  • Central Station of the Year: Guardian Protection Services
  • Central Station Support Person of the Year: Kyle Johnson, DMC Security Services
  • Central Station Operator of the Year: Susan Farris, Security Central Inc.
  • Central Station Manager of the Year: Randy Ambrus, Cooperative Response Center

Read the full press release (including all the finalists and nominees) and watch for the feature story in August SDM. SDM is the awards program co-sponsor. More photos will be posted soon!

(L-R) SDM Editor Laura Stepanek, Guardian Protection Services Vice President of Customer Service Mike Overby, Guardian Protection Services Director of Operations Jason Bradley, CSAA President Pam Petrow

(L-R) SDM Editor Laura Stepanek, Guardian Protection Services Vice President of Customer Service Mike Overby, Guardian Protection Services Director of Operations Jason Bradley, CSAA President Pam Petrow. Photo by Brandon Freedman.

Electronic Security Industry Joins Forces to Fight Deceptive Sales Practices

With the summer selling season in full swing, door-knocking scams are on the rise. Companies like ADT are reporting nearly twice the number of consumer complaints versus the prior year as awareness increases of a major issue threatening the image of the security industry. Representatives from business and industry organizations are teaming together to help fight this major problem.

On June 23 at the Baltimore Convention Center, against the bustling backdrop of ESX 2015, CSAA participated in a news conference about Deceptive Sales Practices in the Alarm Industry. CSAA Executive Director Jay Hauhn was among those addressing members of the local and industry press on this sensitive topic.

David Bleisch, General Counsel of ADT, noted that ADT continues efforts to thwart these practices, including offering a reward to anyone who can provide lawfully-obtained information showing how alarm companies are training employees to engage in deceptive sales practices. “Another new addition is that we are requiring all ADT sales representatives to provide their ADT ID number when asked by a customer,” he said. “With that information, the customer would then call ADT to verify the sales representative’s employment status.”

Baltimore resident Diane Pruitt described how she was recently solicited by a scammer, as did former Baltimore police officer Derrick Layton.

CSAA’s Hauhn said that CSAA members are committed to trust between companies and customers. “We are not knocking door-knocking,” he said. “Door to door selling is a very effective tool, practiced for decades. But it must be done the right way. Companies must train their sales reps to follow the ESA Code of Ethical Conduct and take swift and actionable responsibility when they fail.” His words were echoed by ESA President Marshall Marinace.

From left, CSAA Executive Director Jay Hauhn; ESA President Marshall Marinace

From left, CSAA Executive Director Jay Hauhn; ESA President Marshall Marinace

Casey Callaway of the  Council of Better Business Bureaus closed the session with the following information to help members of the public thwart would-be scammers.

  • Always check bbb.org first. Do your research and read customer reviews and complaints before you do business with anyone.
  • Think of your safety first. Always remember that you don’t have to invite salespeople into your home.
  • Ask for ID. Sales people should be able to provide proof that they actually work for the company they claim to represent, and you can also ask to see a sales license if your jurisdiction requires it.
  • Read everything. Don’t default to trust and quickly sign contracts without fully understanding what you are agreeing to.
  • Don’t give in to high-pressure sales tactics. “Must act now” offers and overly aggressive salespeople should raise a red flag.

— Reported by Elizabeth Lasko, CSAA, and Bob Tucker, ADT