Who Really Owns the Cell Numbers on Your List?

Say you have a list of cell numbers for consumers and you want to message them. Then you use an automatic dialing system to send text messages out to those numbers. This simple and apparently innocuous action could have drastic consequences that could actually cost millions of dollars.

This could happen to you

Take the case of Philadelphia-based frozen treats company Rita’s Water Ice, which settled a class action lawsuit for three million dollars in May 2016.

The reason? The plaintiff claimed that Rita’s had violated the Telephone Consumer Protection Act (TCPA).

The TCPA requires you to have prior express written consent before using an automatic telephone dialing system for messaging cellular numbers on a list.

In the Rita’s Water Ice court case, the company strongly denied the accusations, but they agreed to a settlement so as to avoid a prolonged lawsuit.

The plaintiff argued the case from two perspectives:

  1. Those who had given original consent but changed their mind and asked to be removed from the distribution list, which never happened.
  2. Those who claimed that they had never given consent to receive text messages.

What’s most interesting for those of us in the research industry is the second group. Upon analysis, it was discovered that certain plaintiffs owned cell phone numbers that had been assigned previously to consumers who HAD in fact agreed to receive text messages from Rita’s.  In effect, written consent had been given originally, then the cell number was reassigned to a new consumer who had no clue about any of that.

Navigating the murky waters of compliance  

All of this points to an issue of great concern to researchers: the vagueness of the TCPA. And it begs a major question: how much due diligence should a company or researcher have to perform, to ensure that the cell phone numbers on their list are in fact registered to the names on the list? It’s murky. A grey area. Undoubtedly, more litigation will have to occur before the question is answered definitively.

In the meantime, if TCPA compliance is at the forefront of your data collection, you should contact an MSG account manager. We have the ability to mitigate TCPA risk. We can identify wireless numbers for you, and we can offer identity verification that verifies called-party consent.

Until the TCPA is amended, clarified, or scrapped, the second golden rule always applies: “better safe than sorry.”

TCPA Compliance

My name is Tim Antoniewicz and I am not a lawyer.  I am not legal counsel.  I once played Clarence Darrow in a junior High School production of Inherit the Wind but what I am about to say should in no way be considered legal advice.  However it may be considered helpful in sorting out the quandary that many researchers face when conducting research with a cellular sample frame.

In light of the new FCC regulations (6/18/15) that expand the TCPA, CASRO has provided the following guidelines:

The Federal Communications Commission approved new regulations that expand the Telephone Consumer Protection Act (TCPA). The new FCC rules broaden restrictions on autodialed calls to cell phones without differentiation for caller intent. 

ALL calls to cell phones made using an auto-dialer are PROHIBITED.

DO:

ALL calls to cell phones should be manually dialed.

Regularly update number databases to identify numbers ported to cell phones.

Don’t:

Use a predictive dialer OR an auto-dialer to call cell phone numbers.

Assume that human proximity to, or intervention in, the placement of an autodialed call to a cell phone provides exemption from the TCPA.

Staying educated and taking proactive measures are the key to compliance with the law. Here are some high-level guidelines to follow:

  • Mitigate the risk by verifying the types of phones numbers on your list
  • Get the consent of the current wireless subscribers to a number
  • Be aware of ethical considerations including respondent safety and privacy.

Marketing Systems Group can assist you in flagging likely wireless numbers, identifying ported landline-to-wireless numbers and real-time screening of active cell phone numbers.

MSG is committed to helping you navigate the ever changing regulation landscape from the TCPA and remain in compliance while accomplishing your research goals.

For more information about TCPA compliance, see http://www.tcpacompliance.us/