Chapter 10 Flashcards
Intrusion Upon Seclusion
- one of 4 traditional privacy torts
- IOS ” imposes liability on “one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.”
- To succeed in an intrusion tort claim, the plaintiff must show that “the intrusion would be highly offensive to a reasonable person.”
- In contrast with intrusion tort requirements, telemarketing regulations in the United States address milder intrusions, which do not require a showing of “highly offensive” intrusion.
Telephone Consumer Protection Act of 1991 (TCPA)
- FCC issued regs that place restrictions on unsolicited advertising by telephone and fax. Updated in 2012 to address robocalls.
Telemarketing Sales Rule (TSR): Background
- FTC issued in 1995.
- Implemented the Telemarketing and Consumer Fraud and Abuse Prevention Act
- FCC has a counterpart rule
TSR: Do Not Call Registry, Background and Enforcement
The FTC, the FCC and state attorneys general enforce the DNC Registry.
- Now contains over 220 million participating phone numbers—and is still growing.
- $40,654 per violation.
- In addition, violators may be subject to nationwide injunctions that prohibit certain conduct and may be required to pay redress to injured consumers.
- Violation to call any number without checking registry first.
Exceptions to DNC Registry
- nonprofits calling on their own behalf
- calls to customers with an existing biz relationship (EBR).
EBR with customer - 18 mo. from last transaction
EBR with prospect - 3 months from application or inquiry - inbound calls, provided no upselling.
- Most BtoB calls
- Consent - in writing, with signature, clear n’ conspicuous
DNC Registry: Safe Harbor
Safe Harbor = [I]f a seller or telemarketer can establish that as part of its routine business practice, it meets the following requirements, it will not be subject to civil penalties or sanctions for erroneously calling a consumer who has asked not to be called, or for calling a number on the National Registry:
• The seller or telemarketer has established and implemented written procedures to honor consumers’ requests that they not be called, [and]
• The seller or telemarketer has trained its personnel, and any entity assisting in its compliance, in these procedures, [and]
• The seller, telemarketer, or someone else acting on behalf of the seller . . . has maintained and recorded an entity-specific Do Not Call list, [and]
• The seller or telemarketer uses, and maintains records documenting, a process to prevent calls to any telephone number on an entity-specific Do Not Call list or the National Do Not Call Registry. This, provided that the latter process involves using a version of the National Registry from the FTC no more than 31 days before the date any call is made, [and]
• The seller, telemarketer, or someone else acting on behalf of the seller. . . monitors and enforces compliance with the entity’s written Do Not Call procedures, [then]
• The call is a result of error.
TSR - How Calls Can be Made under Telemarketing Laws
The TSR requires covered organizations to:
• Call only between 8 a.m. and 9 p.m.
• Screen and scrub names against the national DNC list
• Display caller ID information
• Identify themselves and what they are selling
• Disclose all material information and terms
• Comply with special rules for prizes and promotions
• Respect requests to call back
• Retain records for at least 24 hours
• Comply with special rules for automated dialers
TSR - Entity-Specific Suppression Lists
- Consumers can put number on DNC Registry, or ask not be called again by the TMer/Seller. TMer/Seller required to maintain internal suppression lists to respect these DNC requests.
- If distinction between 2 divisions of one TMer/Seller (operational structure wise and types of goods/services wise), then request not have to be honored by one division if made by consumer to other division.
TSR Required Disclosures at Beginning of Call
The TSR requires that, at the beginning of the call, before delivering any sales content, telemarketers disclose:
• The identity of the seller
• That the purpose of the call is to sell goods or services
• The nature of those goods or services
• In the case of a prize promotion, that no purchase or payment is necessary to participate or win, and that a purchase or payment does not increase the chances of winning
Note that disclosures must be truthful.
Note: If made for multiple purposes, disclosures must be made for all SALES purposes.
TSR : Broad Categories of Information that Must Always Be Disclosed
- Cost and quantity
- Material restrictions, limitations, or conditions
- Performance, efficacy, or central characteristics
- Refund, repurchase or cancellation policies
- Material aspects of prize promotions
- Material aspect of investment opportunities
- Affiliations, endorsements, or sponsorships
- Credit card loss protection
- Negative option features
- Debt relief services
Note: For newer payment methods must now meet higher standard for authorizing a payment.
TSR: Other Requirements and Prohibitions
- Must transmit accurate caller ID - TMer or Seller or Seller’s customer service number. TMer not liable if caller ID not reach cosumer if they arranged for it to be provided with carrier.
- No call abandonment, i.e. hanging up or leaving dead air after 2 secs of consumer’s greeting. But is Abandonment Safe Harbor, if
sales rep takes at least 97% of calls actually answered by consumer,
allows 4 rings/15 seconds before giving up on call
plays recorded message stating name/# of Seller when live sales rep not available w/i 2 secs
maintains documentation of these reqs.
- To use pre-recorded message, must have consumer opt in.
- No billing for any goods/services without express informed consent. If during call, can get then. If have account info from another source, getting consent is harder.
Updates to FCC’s TCPA rules re. robocalls/autodialers
- 2012 revision to match FTC TSR.
- Even if have EBR, rquired to get express written consent for robocalls to residential lines.
- Must allow consumer to opt out of robocalls during a robocall.
- Robocalls subject to HIPAA are exempt.
Updates to FCC Approach to Robotexts
- FCC issued order in 2015 that text messages subject to same protections as voice calls under the TCPA. so robotexts require express consent also.
- Also required consent to include clear and conspic. disclosure that calls/texts can be made using autodialer or artificial voice.
- Consent not required for purchase.
- Consent can be revoked
-
TSR Record-keeping Requirements
- Following records maintained for 2 years:
• Advertising and promotional materials
• Information about prize recipients
• Sales records
• Employee records
• All verifiable authorizations or records of express informed consent or express agreement - Also - TMers and Sellers can decide how to keep records per contract.
- sales records must include:
(1) the name and last known address of each customer,
(2) the goods or services purchased,
(3) the date the goods or services were shipped or provided and
(4) the amount the customer paid for the goods or services. - Similarly, for all current and former employees directly involved in telephone sales, records must include:
(1) the name (and any fictitious name used),
(2) the last known home address and telephone number and
(3) the job title(s) of each employee.
State Telemarketing Legislation
- More than half the states require that telemarketers obtain a license or register with the state.
- States can also create their own DNC lists, with differing exceptions, fines or methods of consumer enrollment from their federal counterpart.
- Some states require that telemarketers identify themselves at the beginning of the call, or that the telemarketer terminate the call without rebuttal if the recipient of the call so desires.
- Finally, states may require that a written contract be created for certain transactions.
