Technology and IP Forum Back to School Marketing Primer – Marketing Through Technology, What is Allowed and What Isn’t? © Ifrah PLLC (202) 524-4140 / ifrahlaw.com1

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Technology and IP ForumBack to School Marketing Primer –

Marketing Through Technology, What is Allowed and What Isn’t?

© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

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Michelle Cohen Member, Ifrah PLLC

SPEAKERS

2© Ifrah PLLC (202) 524-4140 / ifrahlaw.com

• Over Two Decades Of Marketing Law Experience, Including TCPA Counseling And Defense Since FCC First Implemented Law.

• Clients Include Large Call Centers, Retail Companies, Online Retailers

• Has Defended TCPA Class Actions/FCC And FTC Enforcement Actions/State AG Investigations

• Obtained Rescission Of FCC TCPA Citation On Behalf Of Messaging Provider

• Counsels Clients Daily On Marketing Strategies• Crafts And Assists In Implementation Of

Sweepstakes/Contests And Other Promotions• Certified Information Privacy Professional – U.S.

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Chris Oatway Assistant General Counsel, Verizon Legal Department

SPEAKERS

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Chris Has Represented Verizon On Key Communications Industry Issues Before The Federal Communications Commission, Congress, The Courts, And State Regulators.

Current Portfolio Includes Consumer Protection, Spectrum Auctions And Spectrum Sharing Initiatives, And Transaction Approvals.

Prior To Verizon, He Spent Several Years In Private Practice In Washington, DC, With Covington & Burling, Where He Focused On Antitrust And Other Complex Litigation.

After Graduate School And Before Studying Law, Chris Was A Senior Analyst At An Economic Consulting Firm Where He Provided Economic Analyses For Antitrust Litigation And Analyzed Mergers Under Review By U.S. And Foreign Regulators.

He Is Fluent In Spanish And Has Written And Presented On Mexico's Regulatory Regimes.


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John B. Adams Deputy Chief, Consumer Policy Division, Consumer and Governmental Affairs Bureau, FCC

SPEAKERS

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• John B. Adams Is Deputy Chief Of The Consumer Policy Division Within The Federal Communications Commission’s Consumer And Governmental Affairs Bureau.

• In That Capacity, He Is Responsible For Policy-Oriented Proceedings, Including Rulemaking And Declaratory Ruling, Arising Under The Telephone Consumer Protection Act.

• Previously, He Served In Staff And Leadership Positions At The FCC, Was In-House Counsel At A Telecommunications Company, Was A Partner In A DC Telecommunications Law Firm, And Was Founder And Principal Of A Telecommunications Boutique Law Firm.

• In Addition To A Law Degree, He Holds An MBA And A BS In Economics.

*Mr. Adams Did Not Participate In Preparation Of The Written Presentation Used During This Panel Discussion.


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LEARNING TCPA THE HARD WAY…

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$40 Million Settlement

$10 Million Settlement

$10 - $15 Million Settlement


Telephone Consumer Protection Act (“TCPA”) – The Basics

• “TCPA” – Enacted In 1991 – To Stop Abusive/Cost-Shifting Telemarketing Practices. 47 U.S.C.§227

• Rules Implemented By Federal Communications Commission (“FCC”) – First Rules 1992, Continue To Revise/Clarify. 47 C.F.R.§64.1200

• Enforced By FCC, State Attorney Generals, Private Lawsuits – Including CLASS ACTIONS

• Statutory Damages $500 Per Text/Call; “Trebled” If “Deemed Willful”


What Does TCPA Cover?

• Makes Unlawful Certain Uses Of Calls/Faxing

• Some Provisions Not Limited To Telemarketing – Cover All Calls

• Some Provisions Not Limited To Residential/Consumer Contacts

• Depends On The Technology And Who Is Being Called

• Also Includes “Do Not Call”; Calling Time Restrictions


What Does TCPA Cover? – Cont’d

• “Special” Lines - Includes Mobile Numbers (Can Be Business Or Residential) – Unlawful To “Make Any Call” Using Any “Automatic Telephone Dialing System”

Or “Artificial Or Prerecorded Voice” Unless “Emergency Purpose” Or “Prior Express Consent” Of Called Party

– “Calls” Include Texts Per FCC – 2012: FCC Clarified – If Telemarketing To These Numbers – Need Prior Express

Written Consent (27 FCC Rcd. 1830)– If Informational Call – e.g., "Comcast Will Be At Your House Between 1-3pm For

Service” – Prior Consent Can Consist Of Person Providing Phone Number



• “Automatic Telephone Dialing System” – Heavily Litigated Term– Defined In TCPA As:

“Equipment Which Has The Capacity To:

• Store Or Produce Telephone Numbers To Be Called, Using A Random Or Sequential Number Generator; And

• To Dial Such Numbers” (47§U.S.C. 227(a)(1))


Recent Clarifications

• In July, FCC Released “Declaratory Ruling And Order” Resolving A Number Of Petitions (FCC Release – FCC 15-72)

• Some Key Clarifications:Autodialers – Dialing Equipment Meets Definition If It Has Capacity To Store

Or Produce, And Dial Random Or Sequential Numbers, Even If Not Presently Used For That Purpose

Autodialers Need Only Have The Capacity To Dial Random And Sequential Numbers, Rather Than The Present Ability To Do So

Equipment That Lacks “Present” Capacity To Dial Randomly Or Sequentially Not Exempt

• If In Doubt, Assume Autodialer – Means – If Calling/Texting Mobile – Need Consent – If Telemarketing – Need Prior Express Written Consent


Recent Clarifications – Cont’d

• Special Exempted Calls– Time-sensitive Financial And Healthcare Issues

• Fraud/Identity Theft Risks/Possible Data Breaches/Steps To Take To Prevent Or Remedy Harm Caused By Data Breaches/Actions Needed For Money Transfers

• Provision Of Phone Number To Healthcare Provider – Prior Express Consent For Calls Subject To HIPPA

• Wireless Number Provided By Customer • Call Not Charged To Recipient• No Telemarketing • Concise – 1 Minute Or Less For Voice And 160 Characters For

Texts• No More Than 3 Messages Per Event Over 3 Day Period • Easy Means Of Opt-Out



• Residential Lines – Unlawful To Initiate A Call Using An Artificial Or Prerecorded Voice To Deliver Message Without The Prior Express Consent Of Called Party (Unless Emergency Or Exempt) – 2012 – FCC – If Telemarketing – Must Have Prior Express Written

Consent (Like Wireless). No Longer “Existing Business Relationship” Or Consent

– If Non-Telemarketing “We Are Calling To Confirm Your Appointment At 3pm Tomorrow” Do Not Need Consent

– If Autodialed, But Live Caller – Even If Telemarketing, No Consent (Different From Wireless) (But May Need DNC Scrub)

• Burden Always On Calling Party To Prove Consent


Prior Express Written Consent

• What Is “Prior Express Written Consent?” (47 CFR 64.1200(f)(8))– An Agreement, In Writing, Bearing The Signature Of The Person Called That Clearly

Authorizes The Seller To Deliver To The Person Called Advertisements Or Telemarketing Messages Using An Automatic Telephone Dialing System Or An Artificial Or Prerecorded Voice, and

– The Telephone Number Authorizing Advertisements Or Telemarketing Messages To Be Delivered.


Prior Express Written Consent – Cont’d

• Must Include A Clear And Conspicuous Disclosure Informing Consenting Party:– By Executing The Agreement, Such

Person Authorizes The Seller To Deliver Or Cause To Be Delivered Telemarketing Calls Using An Automatic Telephone Dialing System Or An Artificial Or Prerecorded Voice; And

– The Person Is Not Required To Sign The Agreement (Directly Or Indirectly), Or Agree To Enter Into Such An Agreement As A Condition Of Purchasing Any Property, Goods, Or Services.


Recent Clarifications – Consent

• Consent – Reassigned Numbers

– If Call Without Knowledge Of Reassigned Numbers And Believe Have Valid Consent To Make Call -Should Be Able To Initiate One Call After Reassignment To Opportunity To Gain Actual Or Constructive Knowledge Of Reassignment.

– Suggestions For Reassigned Numbers


• How To Get “Prior Express Written Consent”? – Many Companies Have Put In Terms– Would Need To Be Affirmative

Acceptance – Not Just Fine Print– Signature Includes Electronic Signature

– e.g. Website Form, Keypress Voice Recording

– Recent Citations To Lyft/First National Bank

• Lyft – People Couldn’t Opt-out And Use The Services

• FNB – Had To Agree To Receive Texts In Order To Use The Services/Didn’t Inform People They Could Opt-out

Prior Express Written Consent – Cont’d


Consent - Example


Consent– Cont’d

REMEMBER!– Consent Can Always Be Revoked

– Once Revoked, May No Longer Call – Put On Company-Specific “Do Not Call”

– Does Not Matter That A Number Is Not On The Federal Do Not Call Or That Someone Does Business With Company

– Also Beware “Mixed Messages” If “Informational Call/Text Has Marketing

– Don’t Exceed Consent (e.g., Buffalo Bills Case)

• If You Have The “Right” Consent” And Call With Telemarketing, Need Automated Opt-Out



• Unsolicited Fax Advertisements – Also Prohibited (Covers Business And Home/Consumer)

– Exceptions • Established Business Relationship• Consent

– Opt-out Notice Requirements

– Once Opted-out, Cannot Rely On Existing Business Relationship


Do Not Call Registry

• How Does The “Do Not Call” Registry Work? – Federal DNC Coordinated Between FCC/FTC Under TCPA And Telemarketing

Sales Rule – Covers Residential And Mobile (Not Business Numbers)

• If Making “Non-Special” Telemarketing (No Autodialed/Prerecorded To Mobiles, No Prerecorded Telemarketing To Residential Lines) Calls – e.g., Live Call To Residential Number – Need To Scrub Federal DNC (And States) Unless:

– Existing Business Relationship (3 Month-Inquiry/18 Month Purchase)– Consent

– Also “Company-Specific” Do Not Call


Top 10 TCPA/Marketing Tips

1. Be Alert To Types Of Communications Being Used: Phone/Email/Texts/ Sweepstakes & Combinations

2. Remember – Some Parts Of The TCPA (Mobile) Apply To All Calls – Not Just Telemarketing

3. Assess Current Status Of Consents – How Being Obtained? Does Language Comply With “Prior Express Written Consent” Where Needed? Does Language Specifically Cover Your Company?

4. Third Party Marketers/Affiliates/Callers – How Supervised?5. Are Procedures In Place For Company-Specific Do Not Call List?6. Review Procedures For Opt-outs – Test to Make Sure They Work7. Is Company Scrubbing Federal/State Do Not Call Databases Where Needed?8. Are Procedures In Place For Flagging Potential Smaller Problems Before They

Become Bigger Problems? 9. Consider Periodic Confirmations Of Contact Numbers When Have A Customer

Contact – Have CSR Confirm Numbers In Your Database.10. Check Insurance Coverage/Indemnification Provisions


Other “Hot” Marketing Topics

• Can Spam – Sending Commercial Emails (15 U.S.C.§7701 et seq.)– You “Can” Send Commercial Emails, Provided They Comply With

Can Spam– No Deceptive Subject Lines/Headers– Opt-Out Mechanism – And Implement– Postal Address– Designate Ad Or Commercial Solicitation– More Limited Private Right Of Action



• FTC: Ban On False/Deceptive Ads Applies Online, Apps, Social Networks, etc.

• FTC Endorsement Guidelines – Need To Disclose If Company Has Paid Endorser, Provided Benefit, etc.– Example – “Mommy” Bloggers - Products To Try– “Advance” “Beta” Launch Of Product With Discount– Sweepstakes Entry


1. Lisa LillienVerified account @HungryGirl Jul 30

Celebrate #NationalCheesecakeDay for a month w/ me & @FiberOne. Enter @FiberOne sweeps on your computer! http://on.fb.me/1ODAJ6d #sponsored


• Sweepstakes/Contests– Prize, Chance, Consideration – Could Be

Illegal Lottery/Gambling– Contest – Prize, No Chance, Possible

Consideration– Sweepstakes – Prize, Chance, No

Consideration • Alternative Means Of Entry (AMOE)• No Purchase Necessary To Enter Or Win• Do Not Require Lengthy Surveys Or Other

Onerous Tasks• Internet Entries OK



• Some States – Require Advance Registration/Bonding – Florida And NY – If Prizes Exceed

$5,000; Rhode Island – If Retail In State

• Terms And Conditions– Make Clear – Dates Of

Sweepstakes/Contest, Who Is Eligible/Ineligible/How To Enter/How Many Entries/How And When Chosen/Conditions – Such As Returning Eligibility Documents

• Twitter/Facebook/Other Social Networks Have Own Rules – e.g., Stating Non-Affiliated And Releasing Them


Have You Ever Dealt With A TCPA Issue?


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THANK YOU!

QUESTIONS?


website: ifrahlaw.com email: [email protected]

twitter: @MichelleWCohen blogs: www.FTCbeat.com &

www.CrimeInTheSuites.com