Welcome to the Professional Association for Customer Engagement (PACE)
PACE is the only non-profit trade organization dedicated exclusively to the advancement of companies that use a multi-channel approach to engaging their customers, both business to business and business to consumer. These channels include contact centers, email, chat, social media, web and text. Our membership is made up of Fortune 500 companies, contact centers, BPO’S, economic development organizations and technology suppliers that enable companies to contact or enhance contact with their customers. We have global membership with many international associations and companies that allow our members to view and connect with what is happening with customer engagement strategies around the world.
From our National Convention & Expo and Washington Summit, webinars and seminars, to our six Regional Chapters that hold events around the country, PACE provides you with the tools and opportunities to become involved and stay involved with amazing networking opportunities. Simply put, our members work with other members.
PACE Regulatory Alert: Senate Commerce Committee Holds Hearing on 25 Years of TCPA
Wednesday, the Senate Committee on Commerce, Science and Transportation held a hearing entitled “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business,” in order to discuss challenges faced by both businesses and consumers.
Chairman Thune (R-SD) opened the hearing by focusing on the imbalance created by the current state of the law. The Chairman opined that the TCPA is “showing its age” due to its inability to keep up with technological changes and that there are ways to build upon its consumer protections while protecting legimate business practices. He called out the FCC for being unable to balance these interests and for creating more uncertainty through its July 2015 Declaratory Ruling and Order (July 2015 Order). The Chairman noted that TCPA cases are the second most-filed type of case in federal courts, with 3,710 filed in 2015, which represents a 45% increase over 2014. The result has been that companies, like Twitter, are being forced to choose between innovation and shakedown lawsuits.
Speaking for the minority, Senator Nelson (D-FL) quickly honed the pro-TCPA discussion on robocall abuse. Citing low income and senior households that have phone plans limited by calling minutes, the senator espoused his view that consent is enough of a solution to TCPA challenges. He also expressed an interest in a revamped and improved Do Not Call list.
Attorney General Greg Zoeller of Indiana spoke as the first hearing witness. He offered the perspective of a current regulator and discussed the TCPA’s limitations as an enforcement tool. While his comments greatly favored consumer rights, he was quick to chide the FCC’s inaction on limiting the volume of illegal robocalls that originate overseas; additionally, he suggested that consumer complaints have not been reduced in spite of the TCPA because it fails to regulate foreign calls that in turn result in the majority of consumer complaints. Attorney General Zoeller also expressed support for the HANGUP Act, which would repeal the recently adopted TCPA exemption for government backed collection calls.
Becca Wahlquist testified on behalf of the US Chamber of Commerce as to the negative consequences suffered by compliance minded businesses and how the FCC’s July 2015 Order has only exacerbated the underlying issues. Her comments focused on the explosion of TCPA litigation, including over-incentivized plaintiffs’ attorneys and professional plaintiffs that routinely purchase dozens of phone numbers—often numbers that have been reassigned—to fish for calls that might be illegal under the TCPA. Potential solutions offered by Ms. Wahlquist included: (1) a shorter statute of limitations; (2) a cap on statutory damages; (3) affirmative defenses for inadvertent violations of the restrictions on calls to cell phones; (4) a reasonable interpretation of what qualifies as an automatic telephone dialing system; and (5) a reformation of the law to focus on actual bad actors.
Margot Saunders spoke on behalf of the Consumer Group and focused her testimony on the negative implications created by “robocalls” to consumers. She pointed to the numerous customer service failures resulting from robocalls made to single individuals, as well as the fact that only one TCPA lawsuit is filed for every 1,000 FTC complaints.
Rich Lovich testified on behalf of the Healthcare Industry, and expressed concern that the costs associated with TCPA lawsuits increases the overall cost of healthcare for consumers down the line. He stated that most complaints did not involve healthcare providers, and that the TCPA prevents healthcare providers from sending healthcare reminders and alerts to patients who would like to receive them. Lovich indicated that the ability to send such reminders encouraged preventative healthcare and, therefore, reduced the overall healthcare costs on society. To that end, he recommended modernization of the TCPA such that it would allow automated calling for non-telemarketing purposes.
Monica Desai, a former FCC Bureau Chief who oversaw TCPA implementation, testified that the current state of the TCPA negatively impacts businesses, non-profits, government entities and consumers. Her testimony focused on trigger points for TCPA litigation (such as the definition of ATDS and calls made to reassigned numbers) and the types of beneficial notifications and messages that are threatened by the TCPA. She indicated that FCC’s ATDS interpretation is unworkable and creates a chilling effect on communication. She further argued that the definition results in businesses using outdated manual dialers, rather than allowing businesses and consumers to reap the benefits of modern technology. Ms. Desai made several recommendations for the Committee, including: (1) the creation of a reassigned number database and safe harbor provision; (2) for Congress to confirm that the prior express consent defense was not intended to be meaningless; and (3) for Congress to confirm that the ATDS definition was not intended to preclude the use of all types of modern dialing technology.
Senator McKaskill, (D-MO) voiced the loudest opposition toward pro-defendant modification of the TCPA. He remarked that consent is enough of a defense for businesses and that calls for reinterpretation of the ATDS definition amounted to “whining”.
Senators Blunt (R-MO) and Daines (R-MT) expressed concern for the harm placed on businesses while overseas actors have continued to scale up their illegal dialing. Senator Daines reflected that the average TCPA claim allowed plaintiff’s attorneys to reap $2.4 million, while the consumers were only returned $4.12 per call.
PACE Regulatory Alert: Supreme Court Holds that Plaintiffs Must Prove Concrete Harm to Sustain a Lawsuit
On Monday, the Supreme Court of the United States held in Spokeo Inc. v. Robins that a plaintiff cannot sue for technical violations of a statute—the Fair Credit Reporting Act (FCRA) in this particular case—without showing concrete harm.
The relevant facts of the case are fairly simple. The plaintiff, Thomas Robins, accused Spokeo, a people search engine, of violating the FCRA by publishing false information regarding his wealth, marital status, education and employment status. Robins sought to recover statutory damages on behalf of himself and a class of similarly situated individuals for the alleged FCRA violations. The district court originally dismissed the case on grounds that Robins lacked standing to bring the lawsuit because he had not sustained actual harm (often referred to as an “injury-in-fact”). The Ninth Circuit reversed, holding that a violation of his statutory rights constitutes an injury-in-fact. The case was then appealed to the Supreme Court.
In a 6-2 decision, the Supreme Court vacated the Ninth Circuit’s opinion, finding that it failed to properly analyze whether Robins sustained an injury-in-fact. According to the Court, the injury-in-fact requirement is met only if a plaintiff establishes that he or she suffered “an invasion of a legally protected interest” that is both “particularized” and “concrete”. The Ninth Circuit’s analysis only covered the “particularized” criterion. It did not consider whether the injury was concrete.
Although the Supreme Court did not rule whether Robins suffered an injury-in-fact (that issue was remanded back to the Ninth Circuit to decide), it provided important guidance on when an injury is considered concrete. To be concrete, an injury must be “actual or imminent, not conjectural or hypothetical”. The Court made a point, however, to note that: (1) intangible injuries can be concrete; and (2) the legislative history of a statute, including Congress’s intent, plays an important role in determining whether an intangible harm is sufficiently concrete to qualify as an injury-in-fact. Nevertheless, the Court cautioned that a statutory private right of action does not automatically satisfy the injury-in-fact requirement. A plaintiff may not sue for a mere procedural violation of a statute without also showing that he or she suffered a concrete (tangible or intangible) harm as a result of that violation.
Although not the death knell to statutory damage lawsuits that many businesses and defense counsel had hoped for, Spokeo will make it more difficult for plaintiffs to sustain lawsuits, including class actions, for technical violations of various statutes that result in no actual harm. The ultimate significance of Spokeo will, however, hinge on: (1) how broadly courts interpret the category of “intangible yet concrete” injuries; and (2) the extent to which defendants can preclude class certification by successfully arguing that the concreteness of an injury—especially an intangible injury—must be determined on an individualized basis.
Given the number of Telephone Consumer Protection Act (TCPA) lawsuits that were stayed pending the Supreme Court’s opinion in Spokeo, we may get relevant TCPA case law on these issues sooner rather than later. For example, courts may need to assess whether the inconvenience of an unwanted call or text message or the receipt of an advertising fax without the required opt-out disclosure is sufficient to establish an intangible yet concrete injury. Courts will also need to consider whether the concreteness determination can be made on a class-wide basis or whether it necessitates individualized inquiries that preclude class certification.
PACE Risk Management Sell Sheet
The new 2016 PACE Risk Management Sell Sheet is now available. Download one now!
Important PACE Regulatory Updates
May 6, 2016
The Federal Communications Commission (FCC) released a Notice of Proposed Rulemaking (NPRM) to implement amendments to the Telephone Consumer Protection Act (TCPA) adopted by Congress in the Bipartisan Budget Act of 2015 (Budget Act). The Budget Act: (a) exempts calls “made solely to collect a debt owed to or guaranteed by the United States” from certain TCPA provisions, including the restrictions on calls to cell phones; (b) requires the FCC to adopt regulations to implement the TCPA amendments; and (c) authorized the FCC to adopt regulations to “restrict or limit the number and duration” of permissible government-back debt collection calls. The NPRM issued by the FCC is one of the necessary steps before it can adopt the required regulations. As with the Declaratory Ruling and Order adopted by the FCC last July, the NPRM was issued despite strongly worded dissents (or partial dissents) from Commissioners Pai and O’Rielly. The following is an outline of the FCC’s proposed rules and the issues it seeks comment on:
• Covered Calls
- Calls to "Collect a Debt". The FCC proposes to limit the exemption to calls made to obtain payment after the borrower is delinquent or "debt servicing" calls made by or on behalf of the creditor. The FCC seeks comment on what should be considered a debt servicing call (e.g. a call offering information about options and programs designed to keep at-risk debtors from defaulting or becoming delinquent on their loans) and how to ensure the exemption does not subject consumers to unwanted marketing calls. The FCC also seeks comment on whether the exemption should be limited to calls made after the debtor is in default rather than when the debtor becomes delinquent.
- Debts "Owed to or Guaranteed by the United States". The FCC seeks comments on the following:
♦ Should the exemption also cover debts insured by the U.S.? ♦ Should the exemption apply if the right to repayment is transferred, in whole or part, to anyone other than the United States or if the collection agency remits only a percentage of the funds collected? ♦ Are there specific types of debts that are or are not covered, such as federal student loans, small business loans and federal guaranteed mortgages?
- Who Can Be Called? The FCC proposes to limit the exemption to calls made to debtors; therefore, it would not apply to calls made to family, friends, etc. Calls made to wrong or reassigned numbers would not be exempt, with the exemption of the FCC’s one call “safe harbor” for calls accidentally made to reassigned numbers. The FCC also seeks comments on whether the exemption should be limited to calls made to numbers provided by the debtor. In such case, calls made to numbers obtained through other methods, such as skip-tracing, would not be exempt.
- Impact of Campbell-Ewald Co. v. Gomez. The FCC seeks comments on whether and how this Supreme Court decision pertaining to sovereign immunity should inform the FCC's implementation of the TCPA amendments.
• Limits on Covered Calls
- Maximum Number of Attempts. The FCC proposes to limit the exemption to 3 call attempts per month, per delinquency (though a debtor can consent to more calls).
- Live Calls v. Prerecorded Messages. The FCC seeks comments on whether and how the FCC should encourage live calls rather than prerecorded messages.
- Duration of Calls. The FCC seeks comments on how the duration of calls/texts should be limited and whether the rules should differ for live versus prerecorded calls.
- Calling Hours. The FCC seeks comments on whether calls should be limited to certain hours (e.g. 8am to 9pm).
- Impact of Other Laws and Regulations. The FCC seeks comments on whether the volume or frequency of calls should be impacted by the Fair Debt Collection Practices Act and/or any rules adopted by the Consumer Financial Protection Bureau.
- Opt-outs. The FCC proposes that debtors should have the right to opt-out of future calls and that callers should be required to disclose this right to debtors during calls. The FCC further proposes that each opt-out should apply to the current and any subsequent collector of the same debt.
- Prerecorded Messages to Residential Lines. The FCC seeks comments on whether the limits on the number or duration of calls should apply to prerecorded messages sent to residential landlines even though there are no current limitations on such calls.
- Applicability of Other TCPA Rules to Exempt Calls. The FCC proposes that calls exempt from the TCPA's consent requirements must still comply with other applicable TCPA requirements (e.g. disclosure requirements for prerecorded messages).
The full text of the NPRM, which includes additional issues the FCC seeks comments on, is available here. Comments are due on June 6, 2016. Reply comments are due on June 21, 2016.
Yesterday, PACE filed comments in response to a petition for declaratory ruling filed with the Federal Communications Commission (FCC) on March 7, 2016. The Petition asks the FCC to create a new “bright-line” rule that telephone numbers used for business purposes but registered with a telecommunications carrier as “residential” are treated as “residential” for purposes of the Telephone Consumer Protection Act of 1991 and its implementing regulations (collectively, the “TCPA”). The Petitioner is an attorney in New York State who uses a telephone number registered with the carrier as “residential” to conduct his law practice. However, he lists the number as his business number on his business card, letterhead, tax returns and with the New York State Unified Court System. He believes calls to his law practice should be protected by the TCPA.
The issue is important because the TCPA requires a telemarketer to scrub non-exempt residential telephone numbers against the National Do-Not-Call (DNC) list before calling or if using an artificial or prerecorded voice to obtain prior express consent from the called party. The same requirements do not apply to calls to businesses. If the FCC issues a declaratory ruling as requested by Petitioner the affect would be to subject these business calls to the TCPA’s DNC and residential land-line prerecorded call provisions because a list of residential numbers is not available for telemarketers to scrub against prior to making business calls.
To view PACE’s comments, please click here.
Finally, the Senate Commerce, Science & Transportation Committee has tentatively scheduled a full committee hearing that will (among other things) examine TCPA litigation abuses for Wednesday, May 18. There is currently discussions with committee staff about hearing witnesses and we will keep you apprised as we learn further details.
FCC Seeks Comments: Residential Telephone Numbers Used for Business Purposes
The Federal Communications Commission (FCC) is seeking comments in response to a petition for declaratory ruling filed March 7, 2016. The Petition asks the FCC to create a new “bright-line” rule that telephone numbers used for business purposes but registered with a telecommunications carrier as “residential” are treated as “residential” for purposes of the Telephone Consumer Protection Act of 1991 and its implementing regulations (collectively, the “TCPA”). The Petitioner is an attorney in New York State who uses a telephone number registered with the carrier as “residential” to conduct his law practice. However, he lists the number as his business number on his business card, letterhead, tax returns and with the New York State Unified Court System. He believes calls to his law practice should be protected by the TCPA.
The issue is important because the TCPA requires a telemarketer to scrub non-exempt residential telephone numbers against the National Do-Not-Call (DNC) list before calling or if using an artificial or prerecorded voice to obtain prior express consent from the called party. The same requirements do not apply to calls to businesses. If the FCC issues a declaratory ruling as requested by Petitioner the effect would be to subject these business calls to the TCPA’s DNC and residential land-line prerecorded call provisions because a list of residential numbers is not available for telemarketers to scrub against prior to making business calls.
Comments may be filed at the FCC’s electronic filing system and are due by May 2, 2016. Reply comments are due by May 17, 2016.
PACE will be holding a webinar for all interested parties regarding this issue on Tuesday, May 3rd at 1 PM ET, with General Counsel, Michele Schuster and Government Affairs Committee Chair, Stuart Discount. To receive dial in instructions to participate, please send email correspondence to Chris Haerich. Instructions for participation will be sent out prior to the call.
This alert is provided for informational purposes only and should not be construed as legal advice. Please consult an attorney for legal advice.
Since 2003, PACE USA DNC Regulatory Guides have clearly and accurately explained the ever-changing telemarketing laws including TCPA in one, easy-access online source. A must have for every compliance professional.
PACE Announces 2016 Convention & Expo Awards
Click here to see a list of this year's winners.
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Education drives innovation and excellence. PACE provides events and programs for sharing “real world” industry best practices, provision of industry benchmarking, meaningful and productive networking opportunities, and compliance programs, guidance and accreditation have created a broad and comprehensive collection of industry content at both our National and Regional Chapter Events as well as through our communities and file libraries.
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PACE provides advocacy, education, networking and commercial value for its members. The association has continued to work with the FCC, FTC and CFPB in developing consumer advocacy programs which have culminated into an industry certification program and a Self-Regulatory Organization designed to improve consumer privacy and protection. PACE also monitors federal and state legislative, regulatory and case law developments on an ongoing basis.
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PACE offers outstanding resources to help develop and enhance critical business development for economies worldwide. From technology and customer service, to legislation and regulation, PACE provides a forum or International Chapter for contact center professionals to promote education and business development.
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Each Spring the PACE Convention & Expo brings together Industry professionals from around the globe for high powered networking and business development coupled with cutting edge educational content all in a fabulous resort location.
Fall holds the Washington Summit where regulators speak directly to attendees about the latest changes in consumer protection and risk management.
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