Our company is thinking about using a dialer to make welcome calls to our new customers. Do we need permission from the customers to do that?
Question
Our company is thinking about using a dialer to make welcome calls to our new customers. Do we need permission from the customers to do that?
Answer
In some cases permission or consent to call using an automatic telephone dialing system (ATDS) is required. For instance, companies using an ATDS to call cell phones must have prior express consent to place those calls, while dialer calls placed to landlines do not have this restriction. Due to this differentiation, companies utilizing ATDS technology must take steps to determine if they are calling a cell phone and if so, ensure prior consent has been obtained. Excluding telemarketing, where consent must be written, consent can take many forms, including communication in writing or a phone conversation. However, since the burden of proving that consent was obtained is on the calling company, it is a best practice to record all calls and retain the recordings for an extended period of time as proof of prior consent. (Retention time frames should be addressed by your legal counsel.) In addition to providing consent, consumers have the right to revoke consent in any way and at any time. Implementing a structured process to capture and document the granting (opt-in) or revocation (opt-out) of consent in any channel is critical for organizations, in order to avoid the risk of legal action.
Consent consists of two items, the person and their cell phone number. When a cell phone number is surrendered and reassigned to another person, previously obtained consent becomes void. On July 10, 2015, the Federal Communications Commission (FCC) issued a Declaratory Ruling and Order regarding the Telephone Consumer Protection Act of 1991 (TCPA), which limits businesses to make one dialing attempt to a reassigned cell phone number without consequence; after that, there is liability. Even if the one call is not answered, the FCC has determined the caller would have enough “actual or constructive knowledge” to conclude whether the number had been reassigned to another person. The practical implications of this ruling are significant. It is important for companies to take steps to ascertain if a number has been reassigned before using an ATDS.
