PCIAA Northeast General Counsel SeminarSeptember 19, 2016

Lewis S. Wiener, SutherlandWilson G. Barmeyer, Sutherland

Richard Jablonski, Progressive Insurance Co.Jeremy Glapion, Glapion Law Firm

The Telephone Consumer Protection Act of 1991I. Overview Codified at 47 U.S.C. § 227 and 47 CFR § 64.1200 Response to a “growing flood of invasive and

unwanted telemarketing calls” Intended to ban all automated or prerecorded calls

except when the receiving party consents to receiving the call or when the call is made for emergency purposes

TelemarketingTexts

Autodialers Faxes

Key Features of the TCPA Regulates telemarketing and

automated communications (especially to cell phones) and requires consumer consent for the use of: Automatic dialing systems Prerecorded voice messages Text messages Faxes

Key Features of the TCPA (continued) Strict Liability $500 per violation 3 x damages ($1,500, if

conduct deemed willful)

No cap on damages

Consent = Key to Avoiding Litigation

Prevent threat of litigation by obtaining requisite customer consent

Telemarketing v. Non-MarketingWhat is Telemarketing?

An advertisement

- or - A communication initiated

for the purpose of encouraging the purchase / rental / investment in property / goods / services.

Examples of Non-Marketing

Payment reminders Confirmations Debt collection Informational messages Service calls

• Dual Purpose Calls = Marketing

Telemarketing = Prior Express Written Consent

Written consent Signed (E-sign okay) With phone number Must disclose autodialer usage Not a condition of purchase

Non-Marketing = Prior Express Consent

Providing a phone number in connection with a transaction

Other action that indicates consent

Vicarious Liability for Acts of Agents Standards / Trends Practical Advice Best Practices

Issues for Insurers #1:

Definition of Autodialer & Calls to Cell Phones

Standards / Trends Practical Advice Best Practices

Issues for Insurers #2:

Revocation of Consent Standards / Trends Practical Advice Best Practices

Issues for Insurers #3:

Risk Mitigation Standards / Trends Practical Advice Best Practices

Issues for Insurers #4:

How Can PCI Have a Voice?

FCC Petition Process Legislative Change Other

Questions/Contacts

Wilson G. BarmeyerSUTHERLAND

Washington, DC202.383.0824

wilson.barmeyer@sutherland.com

Jeremy GlapionGLAPION LAW FIRM

Wall, NJ732.455.9737

jmg@glapionlaw.com

Richard JablonskiPROGRESSIVE INSURANCE CO.

Mayfield Village, OH440.461.5000

richard_jablonski@progressive.com

Lewis WienerSUTHERLAND

Washington, DC202.383.0140

lewis.wiener@sutherland.com