September 1, 2015
Complying with the TCPA: 5 Questions to Consider before Communicating with Customers
The Telephone Consumer Protection Act (TCPA) was enacted in the United States in 1991 to curb aggressive telemarketing practices by placing restrictions on automated calls, faxes, and other outbound communications. Since then, the Federal Communications Commission (FCC) has issued a number of clarifying statements (most recently in July 2015) to keep up with changing technology and respond to requests from petitioners about the interpretation of the TCPA.
One request was filed by the Edison Electric Institute and the American Gas Association in February 2015, asking the FCC to confirm that by giving a gas or electric utility their phone number, customers have consented to receive informational calls at that number. As of August 2015, the FCC has not yet responded to the EEI/AGA petition. Among other things, the TCPA prohibits calls made using automatic telephone dialing systems or artificial or prerecorded voices to any service for which the called party is charged. Both voice messages and text messages are considered “calls” under the TCPA. Emergency calls (subject to a list of specific conditions) and calls that are made with the prior express consent of the called party are excluded from this rule. So how do you obtain consent from your customers to send messages? Prior express consent means that a person has clearly agreed (orally or in writing) to receive a message before the message is sent. This consent is not time-limited unless the recipient withdraws it, but the person or entity sending the message is required to prove that consent was obtained for the message. In the case of any legal dispute, the burden of proof is on the sender, which means capturing proof of consent in writing is the safer option for senders. “In writing” isn’t limited to paper documents, however. The Electronic Signatures in Global and National Commerce Act (ESIGN) provides a definition for an electronic signature that allows an email, website form submission, text message, telephone key press, or voice recording to be considered Signed Written Consent.
Regulations like the TCPA are meant to guide your communications so the only information you give your customers is information they want and expect to receive. In the ideal situation, customers are happy because they don’t get unwanted (and annoying) communications, and you are happy because you can maximize the efficiency and effectiveness of your communications (and your budget). Working on a large scale, it’s difficult to create perfect relationships with your customers. Think of your efforts existing on a range where the closer you are to matching your communications with your customers’ wants, the better your relationship will be and the less chance you have of facing legal action.
Here are five questions to consider when making decisions about communicating:
- Is the communication expected?
- Did the customer ask for this communication?
- Does the communication provide helpful information?
- Does the communication fit the channel?
- Can the customer opt out of the communication?
1. Is the communication expected?
There are certain types of communication your customers expect to receive as an essential part of doing business with you. For utilities, these include bills, rate changes, disconnect notices, and planned outage notifications. At a minimum, you should provide this type of information to customers by mail. Using a preference center or another method of collecting preferences and permissions allows your customers to let you know if they have a different preferred communication channel. Only sending expected types of information is safe, but it keeps you from giving your customers additional information that they could find useful. If the information you’re planning to share isn’t an expected type of communication, the next four questions will help you decide where your communication fits in the balance between your desire to create additional value for your customers and the risk that your customers will not like the things you share.
2. Did the customer ask for this communication?
Using a preference center makes this question easier to answer, because the customer’s preference settings will tell you whether or not they are interested in a particular type of communication. However, the preference center’s usefulness is limited by the message categories you include and how you describe those categories. Any time you combine more than one type of message, such as bill reminders and past due notifications, into a single category, you make customers decide whether they want to receive all of those message types – or none of them. On the other hand, having separate categories for each type of message would create a list of subscriptions too long to manage, causing customers to avoid the preference center altogether. Clear descriptions of the message categories you offer help ensure your customers know what they are signing up for. Pay attention to categories with lower-than-average subscription rates to find places where you may need to make adjustments.
If you can, it’s also a good idea to track customer feedback so you can respond to any input about the way you are grouping messages. Even with a preference center, text messages require more confirmation from the customer than other communication channels. Since customers can be charged per text message by their mobile phone carrier, the law requires you to make sure they are aware of potential charges before they sign up to receive text messages or before they send a text message to a service you provide. It’s also a best practice to provide a second confirmation step (often called a double opt-in) to ensure the customer’s intent to enroll. The July 2015 FCC ruling includes a stringent set of rules around wrong numbers or reassigned numbers. Companies are only exempt from liability under the TCPA for one call to a mobile phone number that has been reassigned. This means that you need to have multiple ways to check for reassigned numbers or to ensure that opt-outs are performed after the first call to a reassigned number. Suggestions made by the FCC include:
- using an autodialer that detects the triple tones for a disconnected number (as numbers are usually disconnected for a period of time before they are reassigned)
- periodically asking customers to confirm their contact information and completing opt-outs for any unconfirmed contacts
- including a requirement in the terms and conditions customers agree to when signing up for messages that the customer must notify you when they stop using a phone number
- including an opt-out option on all messages sent to customers
3. Does the communication provide helpful information?
In answering this question, be wary of differences between what you think is helpful for your customers to know and what your customers think is helpful. Some examples of helpful communication from utilities are bill reminders, storm warnings, or outage notifications, although not all customers will agree on which types of communication are helpful. Collecting communication preferences from your customers can help you determine the types of information that specific customers find helpful. To know whether your descriptions and groupings of messages and the information in those messages are accurate to your customers’ needs and wants, you will need to have some way of collecting feedback. This could be a survey on your website, a set of focus groups, or even a collection of comments from customers taken by CSRs or posted on social media.
4. Does the communication fit the channel?
You should keep in mind the purpose of each communication channel when creating messages to avoid sending messages in an awkward or frustrating format. For example, text messages and phone calls are more personal forms of communication, so they are likely a bad fit for messages like energy saving tips or announcing a new rebate program. More urgent information such as a missed payment or a pending power disconnection may be more appropriate for these channels. When writing messages, strive to keep things as short, simple, and clear as possible. For example, the FCC has indicated that voice messages should be less than 1 minute (excluding options for collecting a response from the customer) and text messages should be 160 characters or less. If you can, try to get input from customers about the wording of your messages. Another area to consider is the timing of messages. Even if a customer has signed up to receive a particular message type on a particular channel, messages can be annoying if they are delivered at a time of day that the customer would not have chosen. To avoid problems with message delivery times, give your customers the option to set a Do-Not-Disturb period for each contact method (especially for voice or text messages delivered to phones) so that you don’t call or text while the customer is asleep, for example.
5. Can the customer opt out of the communication?
Even if you get customers’ consent to send a particular type of message, you need to ensure that they can easily stop receiving communication by email, phone call, and/or text message if they change their minds, or if something in their situation changes so that they don’t need as much (or any) communication. For example, if a customer moves, he or she needs to be able to easily stop receiving outage notifications for the old address. The July 2015 FCC ruling on the TCPA says that companies may not designate an exclusive means for customers to opt out of messages, and that companies should be prepared to accept any “reasonable” method of opt out, including orally or in writing, and track these opt outs by maintaining “proper business records.” Using a preference center that includes an interface for customer service representatives can help you keep track of opt outs whether customers complete them online or call to request that their email address or phone number be removed from a list. It’s also a good practice to include a method for opt-out in each message you send, such as a key press option at the end of an automated voice message, a link in an email, or a text messaging keyword. In some cases, customers may be bothered by certain types of messages but not others, or by the overall frequency of messages. Giving these customers easy options to limit communication without cancelling it completely can help keep everyone happy – customers will be more satisfied because they will get less unwanted communication, and you will be glad you haven’t lost the opportunity to communicate.
The Bottom Line
The core principle behind all five of these questions, and the reason you should seek to provide as little unwanted communication as possible, is customer satisfaction. When you ask customers for their communication preferences and then abide by those preferences, you communicate to your customers that you care about them. Keeping clear records of your customers’ communication preferences also gives you a point of reference in case of any disputes. As you shift your communication to better match your customers’ wishes, you come closer to the ideal, improving both your compliance with regulations and your relationships with your customers. Disclaimer: This blog post is for informational purposes only and not for providing legal advice. You should contact your attorney to obtain advice with respect to any particular situation, issue or problem.