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Recent TCPA Ruling Observations

 

Recently the Federal Communications Commission (FCC) released a Declaratory Ruling that was effective upon its release.  The reason for the issuance of the Order by the FCC was to acknowledge and bring clarity to requests brought by petitioners questioning how the Commission interprets the Telephone Consumer Protection Act (TCPA) while enhancing consumer protections and acting to bring a close to any loopholes.

Congress originally passed the TCPA in 1991 to bring regulation to pre-recorded messages and auto-dialer usage that was perceived as being out of control.  The Act was created to serve as a protection to consumers by restraining companies from participating in unwanted telemarketing activities.  Eventually the FCC confirmed that the TCPA was designed to restrict text message telemarketing activities as well.  Thus, new rules were enacted in 2013 to prevent companies from contacting consumers through text messages or phone calls from a representative without express written consent.  

A company’s failure to abide by these regulations could ultimately result in regulatory action as well as the expense of litigation.  TCPA lawsuits have increased markedly since those new rules were enacted in 2013.  Across multiple industries nationwide, companies that make unsolicited calls to consumers or text them have become the target of multiple class action lawsuits; resulting in huge fines for companies; including many notable American brands.

Best Dialing Practices

So what are the best practices for the healthcare industry based on the most recent Order?  Mnet Financial CEO David Hamilton recommends the following:

*Make certain that you have determined the type of phone you are calling; whether it is a landline or a wireless phone.  There are phone “type” solutions that can provide identification services.

*Capture and secure proper consent from patients before contacting them and be certain that consent covers contact through a wireless device.

*Review office practices to ensure that your list of wireless numbers is current.

*Ensure the phone has not been reassigned and that the person who originally gave consent is still the owner of the phone.  There are services that make it clear when a number has been recycled and is now being used by someone else.

*Always repeat the process of verification for any new patient records or records that have not recently been verified.

*Since one call can be made to a reassigned phone number without liability, be selective about using the exemption.  

*Review messaging being delivered to wireless devices to be certain they are compliant.

It should be noted that on the same day the FCC released their Ruling, the Association of Credit and Collection Professionals (ACA) immediately filed a lawsuit seeking judicial review of the Ruling from the U.S. Court of Appeals in the D.C. Circuit.  Since then, other organizations have filed suit as well, seeking to challenge the FCC’s interpretation of the TCPA.  We will keep you updated as the story develops.

Last modified onWednesday, 11 November 2015 19:45
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