[E021] Helping You Stay Compliant and Defensible, with Michele Shuster from Mac Murray and Shuster, LLP

Episode 21 September 15, 2021 00:41:03
[E021] Helping You Stay Compliant and Defensible, with Michele Shuster from Mac Murray and Shuster, LLP
Scalable Call Center Sales
[E021] Helping You Stay Compliant and Defensible, with Michele Shuster from Mac Murray and Shuster, LLP

Sep 15 2021 | 00:41:03

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Show Notes

How critical is it to have a defendable position in the teleservices world before you start doing anything? What knowledge of the law do you have?

For those who aren’t aware of the regulations and compliance, there could be many traps and potential pitfalls. We should be aware of the requirements in certifying our compliance.

In this episode, Michele Shuster from Mac Murray and Shuster and I, talk about regulations and compliance – two things that may sound scary to call center listeners.

Learn more as Michele discusses and shares her experiences on the legal compliance side for call centers.


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Connect with Jason on LinkedIn

Or go to Jason’s HUB – www.JasonCutter.com

Connect with Michele on LinkedIn

Michele‘s Bio
Michele Shuster is a founding partner of Mac Murray & Shuster LLP and former Chief of the Ohio Attorney General’s Consumer Protection Section. Bringing more than two decades of experience in the consumer protection arena, she advises highly regulated businesses on a wide range of privacy, advertising, and other consumer protection issues. Michele has an extensive background in the teleservices industry and regularly represents clients in matters before federal and state regulatory agencies, issues legal opinions on companies’ outbound dialing solutions, conducts telemarketing compliance audits, and provides defense in government enforcement actions.

Michele’s Links
https://mslawgroup.com/

https://mslawgroup.com/blog/

https://www.linkedin.com/in/michele-a-shuster-3941486/

https://paceassociation.org/default.aspx


Jason: Hey everybody. Welcome to another episode of the scalable call center sales podcast. Today, I have a very special guest. We’re going to talk about regulations. You’re going to talk about compliance. We’re going to talk about scary stuff that a call center listeners may or may not want to hear.

[00:00:50] I’ve got Michelle Schuster on the show. She’s from Mack, Marie and Schuster. She’s a partner there and, uh, her biggest focus is on the legal compliance side for call centers. She is the former chief of Ohio attorney generals consumer protection section. She’s been in the space for two decades, consumer protection, highly regulated business sectors, a wide range of privacy advertising, consumer protection within that, and more recently, or right now, a lot of focus on tele sales and talent services.

[00:01:25] Michelle, welcome to the scalable call center sales.

[00:01:29]

Michele: Jason. Thanks for having me. I appreciate it.

[00:01:32]

Jason: So I’m glad you’re here. This is a topic that a lot of people don’t want to hear. There’s two sides of the fence, which we’ll, we’ll talk about the people who are proactive and reactive. I know one of the things that’s super fun about this.

[00:01:46] We actually met at, uh, leads council, uh, leads cons for city industry tour. And, uh, there’s two cities that you were there. And so I got to hear you talk and we spent some time walking around the Memphis zoo, which is super fun. But as soon as I heard you talking about, we did, it was like, I need to have you on the show.

[00:02:05] I want you to share what you can to help call centers, hopefully on the more proactive side.

[00:02:12]

Michele: Yeah, I mean, so critically important, our tagline and what we always say to clients is you’ve got to have a defendable position before you start doing anything in the teleservices space, because there are so many, uh, traps and, uh, potential pitfalls for those that don’t for the ones that aren’t aware of the regulations, and aren’t aware of how they need to document that they’re complying with those stuff.

[00:02:36] It’s just so, so critically important, especially, you know, nowadays you’ve got, uh, cheetahs. I can use I’ll use cheetahs, uh, since, uh, we met at the zoo, but you know, there are other wild animals coming at you from all direction in the forum of vexatious litigate, which are those folks that have been called or they’re not litigant check cause they haven’t filed litigation.

[00:02:56] But folks that have been called and they’ll they’ll make demands for a financial settlement once they received a call. And then you have the lawsuits, uh, TCPA law suits are still. Uh, being filed at a very high number. And then on top of that, you’ve got the federal regulators, the FTC, or the federal trade commission, the federal communications commission.

[00:03:15] And now we’ve got state AGS that have become very active in this space and actually breaking news right now. Jason, there just happened this day in the ag space. Uh, the national association of attorneys general. Uh, whose acronym is nag, the world’s greatest acronym for an association. They have just announced that they’re having a robocall virtual summit open to the public.

[00:03:38] I think it’s a $50 registration fee. If you want to go, I have the dates and I have to look at this because I literally just got this email from the Ohio G’s office. I got it. September 8th, eighth is the public part of that. All 50 of the state’s attorneys, general offices, their consumer protection chiefs get together, uh, for these meetings and this one in particular, uh, which is on a robocall virtual summit.

[00:04:05] And, uh, just as a, you know, a reason why this is such an important topic, the AGS offices are really focused on this, and I’m sure we’re going to talk about Facebook and other, other types of decisions like that on the federal level, but on the state level. You know, the AGS have issued at a record high level subpoenas and investigative demands to companies and the lead generation space or affiliate marketing space, the calling space marketing space, and they have spent a lot of time really looking at how.

[00:04:40] You know, the bad robo callers, the illegal world callers are doing it. And at this summit, I think based on what I’m seeing in the agenda, they’re going to lay out how it happens. And, uh, they’re going to educate the other AGS offices on how to initiate their own investigations. So that’s throwing down the gauntlet, the AGS are serious and it’s more important than ever that the companies comply.

[00:05:03]

Jason: Yeah. And I think one of the biggest things I know we’ll talk about is the fact. So many states are handling things different. So at some point it was a little simpler when there was just like the federal level of the rules and then the states are all doing different things. And then just to put this in context and put a date stamp, you know, no mystery podcasts are recorded in advance.

[00:05:25] Although sometimes it seems like it’s not just there. Everyone knows we are recording this on August 12th, 2021. So whenever you’re listening to this, this is kind of the state. Compliance. If you will, as of right now, Based on what we’re talking about. So, uh, my guess is by the time this comes out and people hear it, uh, there’s probably a lot more, that’s going to be in effect, right.

[00:05:48]

Michele: A lot more. And if they miss that virtual summit, I’m sure there will be a lot of people blogging about it. So, um, yeah, for sure. That’s a good, good idea to put a date stamp on this.

[00:05:57]

Jason: One of the biggest things, and this is where I really want to start at a high level. And then let you go where you think is best is what I see.

[00:06:06] And I know you see this as well, where companies know about compliance. They know about like compliance and talking about all of these calling regulation side, right on the telesales tele service. And they know those things exist, but there’s this debate or battle in their mind of saying, well, if we’re competing.

[00:06:25] We’re not going to be able to sell very well, or we’re not going to generate the revenue we need to, or this and that. Right. So it’s an either or discussion that I see a lot play out in leaders and business owners minds, which is I can either sell a lot or be compliant, but I can’t do both. I obviously believe different.

[00:06:45] I think you can do both. What do you see and where is that intersection and, or out of necessity?

[00:06:52]

Michele: Yeah, I will tell you that. Um, you know, I have come across that attitude, uh, several times in my two decade career, when you set that at the beginning. Wow. I don’t feel that old, but I guess I am, but I’ve seen that a lot.

[00:07:05] And what I’ve also seen is those that have chosen to just turn a blind eye on compliance. I frequently will see them in, you know, what we call the advance sheets that, uh, showcases that have been filed the day before. Or showing up in press releases that an enforcement action was taken against them. So I can also tell you that I work with a number of very large companies, small companies, even entrepreneurial companies, and they are very successful at what they’re doing and also complying.

[00:07:37] So it’s not an either or proposition. And I would say. Environment is probably more important than ever to comply because as I said, you’ve got all these different agencies involved, but then you throw into that, that we have the telecom carriers too, that have now become active regulators of what calls are going to get through to consumers in the form of stir shaken now, which we can talk about, uh, also today, but also in the form of blocking and labeling of telephone calls.

[00:08:06] So if you are, um, placing telephone calls at a very high volume and you’re having short duration telephone calls, or if you’re getting a lot of complaints, uh, either at the FTCs website or with the BBBS or with the tail compromise. Then more likely than not calls are going to be labeled or blocked. And so it’s not even just that it’s compliance consideration.

[00:08:31] Now. It really is a consideration of whether you’re going to be able to effectively run your campaigns. You have to know compliance and you have to integrate it into your operations.

[00:08:40]

Jason: So if I’m an organization and right now I’m operating, I feel like I’m compliant. I’m probably doing a good job of buying some opt-in leads, maybe trusted forum, maybe with there’s something there that tells me it’s hopefully compliant or maybe it is.

[00:08:55] I’m just going to assume. I don’t know if you can answer this, but I’m going to try, I’m looking at this thing and saying, I can’t change my whole ship. Like my ship is going one direction. You’re talking about a lot of things I should keep in mind. Is there anything that’s at the top of that list or is it literally like all of it should be addressed as soon as possible within an org?

[00:09:16]

Michele: Well, I mean, it’s not, it’s not practical to think that that everything can be addressed by an organization that hasn’t implemented compliance into the design of their business operations. But I would tell you probably the most critical thing from the beginning is I think that consumer complaints. Are something that you have to take seriously and you have to respond to, and you have to look for trends because consumer complaints, uh, usually mean that those consumers are also complaining to the regulators or to the BBB and the regulators monitor, or the BBB is complaints.

[00:09:50] And you have a much higher. Chance of getting involved in a federal investigation or a state investigation and, uh, potentially a regulatory enforcement action, if you don’t pay attention to those consumer complaints. So that’s always where I would start. Uh, where are the complaints coming from? What are the folks that you’re calling saying on the phone?

[00:10:11] Are you getting a lot of negative feedback on those types of fans? And if so, those are your golden nuggets to look to see where changes needed to be made. Beyond that I always tell companies, scripting is so important because you have the federal regulations that required certain disclosures. And then you have 50 states that also require disclosures.

[00:10:31] And if you do get involved in an enforcement action, the first time the regulators ask for your scripts, and if they don’t have the right disclosures in them, and it could be off as much as you know, there are states that require a calling agent to say their first name and their last name, uh, or to. Uh, give her permission to continue statement on the call.

[00:10:51] And if you don’t have those built into your scripts, uh, then you have a violation for every call and it’s proof positive for those, for those regulators weren’t or even any lawsuits that could be initiated. So, you know, critical to look at the, uh, at the scripting as well. And then third on that list, I would probably say, and it’s really an AB component is you have to have documented processes and procedures.

[00:11:15] Uh, it’s required that you have certain, um, documented policies and procedures in place where it’s in violation of federal regulations. You have to have an active, do not call a program in place. Um, and then once you have those policies and procedures, then it’s really critical that you train your employees.

[00:11:33] And, uh, so that that’s where I’d start. And then also you’ve got to audit, uh, to make sure that they’re following. But those are some steps you can, you can take, you know, to begin with so that it’s not overwhelming. Um, you know, there are a lot of compliance companies out there. That’s something our firm does working with, uh, companies to go in and do compliance audits and provide, uh, practical solutions that are capable of being implemented that in a cost effective way.

[00:11:57] So just critical, critical that those things

[00:11:59]

Jason: happen. All right. So if somebody wants to start out and they really want to tackle this. Bit by bit. Then the first thing is, is to look at the complaints that you’re probably receiving. And even the most compliant companies can end up with complaints. But if you’re unsure of what’s going on is to take those complaints.

[00:12:16] Like you said, look at them, address them, respond to them, don’t ignore them. And then also look for the trends which are going to be the same thing the government’s going to look at is what’s the trend. If you have 10 complaints and they’re 10 different complaints, well that maybe that’s. Crazy people, right?

[00:12:32] 10 complaints. And it’s the same complaint and the same issue. Then that’s going to be a giant spotlight. So that’s the first one you said, and then scripting for all those different states. I know there’s technology that a lot of call centers can use to help that I’ve even seen times where it’s like, if somebody says no and they’re from a certain state, you can’t keep pushing.

[00:12:53] You. Can’t keep trying to convince them and persuade them. Like you have to take them. And then, and it basically, and then, like you said, documented processes and procedures, and then obviously training everyone to make sure they know it. And that you can defend that, like you said, in the beginning, that defensible position.

[00:13:11]

Michele: That’s right. Very well summarized.

[00:13:14]

Jason: Okay. So people are doing that then what would be next on the list? Like as you’re going through the call center hierarchy of needs and compliance. If we were to create such a thing, like then what are we now getting into bigger compliance stuff and regularly.

[00:13:30]

Michele: I think after that, it’s really just a matter of remaining current.

[00:13:33] Right? If you’ve taken the time to put the policies and procedures in place, you’ve implemented them. You’ve trained folks on them. You’re auditing against them. They’ve had to just make sure you stay current. And so your podcast is an excellent place to do something like that. You’re, you’re keeping people up on the law.

[00:13:49] So. Also a lot of different organizations out there in general counsel for pace, the professional association for customer engagement, we have a very active government affairs committee. We get very involved in the important issues of the day. Uh, both in terms of, um, filing briefs with the court. To educating, uh, congressional members.

[00:14:11] We have a legislative monitoring, um, report that we put together every month to make sure that we know what’s happening so that we can start to, uh, you know, addressing those types of issues or educating as the case may be. So you really just gotta stay current because it’s changing every day. There’s something different.

[00:14:27] Uh, either a new case that changes things slightly or a state that decides they’re going to amend their telemarketing statutes and those types of things.

[00:14:36]

Jason: So let’s start at a high level, I guess, the top level with the federal government, things like TCPA, where do you see companies struggling with that?

[00:14:46] And what kind of advice or direction should they be taking to, you know, especially in this currently.

[00:14:54]

Michele: Yeah, I think that, um, there are some, uh, lead generators in the affiliate marketing space that, uh, have caused problems for companies. Uh, there’s allegations of litigation of, you know, manufactured, uh, leads or leads that aren’t, um, capable of being substantiated.

[00:15:13] Once you dig into. So, um, that’s an area where we’re seeing a lot of trouble with, um, also managing vendors. Uh, so, uh, we have had a few cases that have come in, uh, that, you know, a company enters into a contract with a vendor for certain services and, um, prohibits fans like prerecorded messages, uh, or using an ATVs and some situations.

[00:15:40] And then that company either disregards that, or they subcontract them. And, uh, the subcontractor starts using pre recorded messages or, uh, ATBs is when the calls weren’t meant to be dialed that way. It may not have the consent that was needed to dial that way. So, uh, you know, vendor management and vendor due diligence and onboarding and, um, you know, keeping track of them, auditing them, um, you know, seeing if any complaints are generated by the numbers they’re using really critical to keep up on those types of fans.

[00:16:09] So those are two of the areas that we’re seeing, um, problems. Uh, also, I would say, uh, you know, you see cases out there where, uh, you rely on maybe a smaller lead generation company. And when a TCPA lawsuit is filed, that lead generation company folds up shop. And so you did not obtain copies of the. The information that you used and received when generating those leads.

[00:16:33] And then you have no proof that you have consent and that is required as an affirmative defense to have to prove that you had those valid consent forms in order to be able to defend the case.

[00:16:44]

Jason: Yeah. And I’m sure in that situation, using the reason slash excuse that you can’t get a hold of them and they’re not around anymore.

[00:16:51] It’s probably not going to fly.

[00:16:54]

Michele: No, it doesn’t fly. Uh, for sure. That’s not the plaintiffs issue. It’s not a regulators issue. It’s your issue as it’s your true burden of proof and your defense to object consent. So, yeah. Yeah. The big problem.

[00:17:07]

Jason: So I know one of the things that I see that comes up in conversations is I’m a call center.

[00:17:14] I’m buying leads, right? Or I’m paying for leads to be generous. Elation happens. And then it’s like, well, it’s not my fault because somebody else generated the lead. What is the current view on who’s responsible for what, in that chain of the compliance and where the burden falls who’s the most responsible or held responsible?

[00:17:37]

Michele: Yeah. And so ultimately under the TCPA, the caller is responsible, but having said that there have been a few cases filed recently that I’m aware of that have also named, uh, the lead generation company. And it really, the frightening thing about recent litigation is that, you know, the TCPA has liability, not just for the call originally.

[00:18:00] But anybody really, who was responsible for placing that telephone call. And so we’re seeing owners of companies being brought in, uh, we have seen a few cases filed that, um, managers have been brought into the litigation. So, you know, that’s, that’s an alarming trend that we’re seeing in this type of

[00:18:18]

Jason: litigation.

[00:18:20] So, and because it’s on the color and the responsibility for TCPA specifically, then it’s the lead generator generally. Except for the ones that you’re talking about recent ones, are they just off the hook for it being generated the way. Yeah.

[00:18:35]

Michele: So, um, some of the larger lead generation companies who’ve been brought into litigation recently, and those are something that you can look up, uh, to see, but, um, the lead generation companies are being brought into, uh, lawsuits now.

[00:18:49] And, uh, sometimes it’s based on the fact, I will say that the lead generator Rader was the one placing the initial telephone call. So maybe it was, uh, a transfer call. That would happen. And, um, so in those cases, it’s a little bit easier to bring the lead generation companies in because they are the ones that are actually originated the call.

[00:19:09] Um, but anybody in that chain can be liable. I would also say that frequently, what we see happen with delete generators is that they will have a contractual obligation to indemnify their clients. And so most frequently the lead generators are not brought in. It’s infrequent that that happens. It’s changing a little bit now, but it’s.

[00:19:30] But what we do see is that the companies are then, uh, either post litigation or post-settlement imposing those indemnification obligations on the lead generators. So that’s more frequently where we see a risk for lead generators.

[00:19:43]

Jason: Hey, it’s Jason here. We’ll be right back to the podcast in a moment, but first, are you ready to help your inside sales team?

[00:19:48] Close more deals? In my experience, there’s a certain percentage of your team that acts more like order takers than sales professionals. The first step to creating a scalable sales team is to equip your reps with the right mindset and proven strategies to transform them into quota breakers, to build a team of authentic persuaders that will crush their goals.

[00:20:07] Email [email protected] or go to www.Cutterconsultinggroup.com. Okay. So one of the things you brought up earlier, you mentioned, and maybe this is a good place to put it in is the Facebook ruling that happened recently and what that does to. The state of calling, I guess.

[00:20:30]

Michele: Yeah. So, you know, we were pretty happy after the Facebook, um, decision because, uh, you know, that’s something we had been fighting for for a long time.

[00:20:38] Uh, I’ve been a general counsel for pace, uh, for gosh, since 2011 now, I guess, and the TCPA really became a vehicle for litigation back in 2013, when. The statute was revised to take away the existing business relationship exemption for calls to sell phones, using an ATVs. And so back in 2012, and the FCC announced that they would do that.

[00:21:06] That was when we first got involved, filing a brief, asking for clarification on what the word capacity meant and the definition of ATDs. And the definition is a system that has the capacity to randomly or sequentially. Generate a telephone number or a store or produce. I said it should say telephone number and then to call that telephone number.

[00:21:25] And so we were focused on that word capacity to randomly and sequentially generate that telephone number and then either call it or store it. So. Uh, we got a decision back in 2015, uh, which was the illustrious decision that made every, um, every type of, uh, modern dialing equipment, uh, technically an ATDs.

[00:21:47] We then appealed that to the DC circuit courts. We got a favorable ruling in that and sent it back to, uh, the FCC, which has decided they have decided to focus on store shake, and rather on defining ATVs. But at the same time, uh, we had cases that were being decided by the courts. And one of those cases involved, um, Facebook and, uh, Facebook, uh, was texting in the case, not for not calling, but the text was viewed as a, a call in this realm.

[00:22:15] And so someone had gotten a number that had been assigned to somebody else. And when it was reassigned, he started getting a telephone call. Texts and things of that nature and you wanted those to stop. And so, uh, he put in a request not to, it was never honored. And so he sued Facebook or the important part of this is that when the us Supreme court looked at what the definition of an ATDs is, um, they were looking to determine those words store produce were store telephone numbers that have been generated by a random or sequential number generally.

[00:22:49] Was it really only modifying the produce or was it also modifying the store and the term store? And so the plaintiffs that had been involved in litigation had said it doesn’t make any sense for an ATDs to be able to store a telephone number. It’s going to generate it, it’s going to call it. So, um, it must mean that if, um, telephone numbers are being stored and then call.

[00:23:15] You know, being stored in and called in a way that doesn’t involve any type of human intervention, then that must be what the definition of ATDs was. Well, when the Supreme court looked at it, um, we filed an Amicus brief that, uh, attached to patent that showed that back at the time when the TCPA was written, there were actually dialing systems that would all would both store.

[00:23:36] Or produced telephone numbers. And so we showed the patent and those could be stored. And so the Supreme court relied somewhat significantly on that and decided that, um, both of the words needed to be interpreted as, um, something that a random number generator would do a store or produced. And so that was a very narrow definition and it excluded all predictive dial.

[00:23:57] Except for there’s this footnote seven that you’ll see people frequently are referencing and in, um, footnote seven, the Supreme court addressed plaintiff’s argument that, uh, it didn’t make any sense. Uh, that numbers could both produce and store. And that, you know, as a result, that store, that store term was, um, superficialis was the term that they use.

[00:24:23] But then they pointed to the patent again and showed how it wasn’t because we had shown a patent that did that. But in doing that, they mentioned that, uh, the patent also was sequencing them. And so, um, footnote seven has now been used by plaintiff’s attorneys to say any dialing system that is randomly or sequentially using numbers to then sequence telephone numbers to be dialed.

[00:24:48] So that then called from that list is now an ATDs and, uh, any type of modern computer that indexes telephone numbers is sequentially generating numbers for how those are subsequently. Uh, in our call center sends going to be dialed. And so, um, you know, if you look at, at the actual, um, decision, and I think quoting this is probably worthwhile, it says in any event, even if the storing and producing function often merge Congress may have been, uh, you know, employed a belt and suspenders approach in writing, uh, the statute.

[00:25:21] In other words, um, they were saying that both of those words were critically important to, and it was in the dialing fund. I feel like that was a long rambling, uh, trying to fit in, uh, 10 years worth of TCPA. I don’t know that I did a particularly great job on it, uh, right here that time around, but all of it to say is that Facebook was a very important decision.

[00:25:42] The TCPA has been narrowed. The problem is we were hoping that after Facebook cases could be dealt with, uh, the motion to dismiss. You wouldn’t have to do any litigation. You wouldn’t have to do any discovering cause discovery because let’s face it. The expensive part of TCPA litigation is the attorneys.

[00:26:01] And once you have to start litigating, once you have to start paying the attorneys, then you’ve already lost. So, unfortunately we’ve had a few courts that have taken footnote seven to say that we have to do discovery to turn in how the dialer is working. And it has mentioned the sequencing concept. So, um, I would say one of the things that, uh, could be very helpful if you’re one of the companies that’s put in that position is there was a case out there uh Hoffness versus do not pay.

[00:26:29] And because pace felt so emphatic about it. Getting on record about what the Supreme court said, what our patent said, what our brief said, uh, that we filed an Amicus brief in that case. Uh, if you are in litigation and this is an issue for you, I’m happy to provide that brief to you that you could submit as an authority, a supplemental authority potentially in your litigation, or you can go to the case and you can pull our brief it’s public.

[00:26:54] Again, that’s hotness versus do not pay. I think it’s very helpful for anybody that’s running into that footnote seven.

[00:27:01]

Jason: And I think that’s all helpful and yes, that’s a long answer explanation, but I think the biggest thing that I learned from you and hearing about this several times is that this Facebook ruling really kind of pushed the government back a bit on their overreaching with the TCPA and everything they were trying to include and help narrow it down to the original intent, uh, which when did TCPA.

[00:27:28] How long ago was that

[00:27:30]

Michele: in the early 1990s?

[00:27:32]

Jason: Yeah. So the technology then and what it was being used for, and what’s available now, I know if it’s extended all the way, you know, a cell phone could be considered a ATDs.

[00:27:44]

Michele: Yeah, but I will tell you that was the point of, uh, the appeal I mentioned to you from that 2015 FCC order and the DC circuit court specifically said that, uh, if you are rendering every cell phone user, I federal law violator, which I love that term then, uh, your interpretation of the statute has, has gone too far.

[00:28:07] And so. Um, you know, we use that frequently. Now, if it doesn’t pass the, everybody who has a cell phone, uh, would be a federal law violator when they make a call to somebody for marketing purposes potentially, or even not, it could be a non-marketing call if you’re using your cell phone and you don’t have the right kind of consent, then you’re a federal law violator.

[00:28:25] So yeah, that’s the test. If that’s what the case would be, then the definition has gone too far. And I think that potentially is the case with footnote seven.

[00:28:34]

Jason: That’s awesome. And again, for people who are in a situation right now, they’d rather not be in. Um, but they feel like they didn’t break that rule.

[00:28:43] Definitely reach out to you, uh, to get that case and any info. So let’s move on from the TCPA side. Let’s talk about some states stuff. Now, obviously 50 states, there’s probably. 80 different rules. I don’t know more rules than states. I just have a guess, but what are some of the big ones that are, you know, more universal across the states or what companies need to be aware of?

[00:29:08] I know that, you know, what’s referred to as the mini TCPA and Florida’s a big one that just passed last year.

[00:29:15]

Michele: Yeah. You know, Florida is a problem, um, because we have no context around the changes that were made by the Florida legislature and amending their telemarketing statute. And, uh, one of the problems with the Florida telemarketing statute is that it does have a private right of action, just like the TCPA.

[00:29:34] Uh, so it could become a very expensive, uh, thin if you are not, uh, understanding the Florida, the Florida regulations and following those and building that defendable position that we’ve talked about. But the problem with Florida’s amendments is that you need express written consent, like the TCPA for these marketing calls, but it left some ambiguity about the definition of, uh, what type of dialing equipment triggers those, uh, express written consent requirements.

[00:30:05] And again, Florida has picked up on this concept of sequencing. So I don’t know if this is something that happened in the wake of, uh, the Facebook. Decision, but they put that, that concept of sequencing. So what a lot of companies are doing now is they’re getting dialer opinions on exactly what their dialing system can and cannot do.

[00:30:25] And a lot of companies are choosing to take the approach that if the phone number is automatically presented to an agent, even in a click to dial setting that they’re giving their agents the option to either click to dial that, or they could skip that, that number and go to the next one. Or just choose not to choose not to call that so that it isn’t automatically sequencing the dialing of the phone call.

[00:30:49] So now would be a good time to have somebody take a look at your dialer and give you an opinion on that. And, you know, I always say when you’re, when you’re looking at your dialer and you need that kind of opinion, you gotta make sure you attend. Are on board with what it is that you’re going to say, because we’ve had more TCP cases that I’ve seen be ruined by companies that brought their, their tech guy in as an expert who would say that they could make their dialing system do with anything.

[00:31:14] Um, because that’s what technology can do in there. That caused problems, especially, uh, before the Facebook, uh, before the Facebook case.

[00:31:21]

Jason: You know, like you said, there’s scripting and 50 different states. There can be challenges all over, but yeah. Where is there just an extension of say TCPA or FCC?

[00:31:32]

Michele: Sure.

[00:31:32] Well, I’ll talk about some places where we’ve seen, um, state causes of action that are causing companies problems. Um, California has a privacy regulation that requires, um, consent to record for any calls that are being monitored or recorded. And there’s a $5,000 penalty. Statutory penalty associated with every call that, uh, is recorded.

[00:31:56] That, uh, there’s not that type of, um, consent to record disclosure on. So that is a huge problem. You’ve got to make sure you’re getting those consents record requirements, right. Uh, we’re also seeing a number of cases that are being brought in South Carolina. Uh, they had a statute that has stacking of, um, penalties.

[00:32:16] For violations of fans, like not having the proper disclosures that we were talking about before. Uh, so the name disclosures, uh, not following the, do not call laws. I’m not calling, uh, with consent, uh, for certain type of dialing. So we’re seeing a stacking of penalties in South Carolina that can rack up very quickly.

[00:32:35] I saw a case that was filed. Uh, this week that I thought was actually was probably last week. That was really interesting. And that now that we’ve got the ambiguity with the TCPA cases and plaintiff’s attorneys are concerned that they’re going to have to be involved with all of this very expensive discovery only to lose at the end.

[00:32:53] Uh, we’re seeing them bring in these, uh, state law. Uh, violations as well. And also they’re bringing in plaintiffs from each of those states. And, um, couple of reasons for that one is that, um, uh, some courts were finding that if you had a plaintiff say in Ohio bringing a TCPA case, you could only bring in class members for all.

[00:33:14] So plaintiff’s attorneys are countering that by bringing in plaintiffs from multiple states and making them part of the, uh, representative plaintiffs in class action. So since being in the AGS office, one of the things that we’ve done in private practice, more than anything else is 50 state surveys. And that’s because there are these 50 state staff.

[00:33:32] Uh, for telemarketing, for consumer protection, for privacy, for consent to record and all of these different areas. And if you’re calling it all 50 states, you have to be on top of them. And you’ve got to understand what your least common denominator is and decide that you’re going to meet that least common denominator, or you’re going to decide not to call into that state.

[00:33:51] So, you know, all of this to say about the state law. The types of requirements that I just mentioned, you really got it. You’ve got to know where you are potentially setting yourself up for some pretty significant outcomes in the future, especially with the plaintiff’s bar as active as has.

[00:34:07]

Jason: So, like I had mentioned the beginning, this conversation, which I knew it was going to be like, this is not necessarily a happy, fun conversation.

[00:34:16] We’re not talking about closing more deals and, and motivating your team and all these other things that I could talk about. But obviously it’s super important because it’s the survival and long-term success of a company is going to be based on navigating all this. If you were running a call center, What would keep you up at night relative to either what we’ve talked about or anything else?

[00:34:40] Like, what is it that you would be most worried? An

[00:34:43]

Michele: unmotivated team.

[00:34:48]

Jason: I don’t need more. That was the least of

[00:34:50]

Michele: the concern and kind of motivated to you. Yeah. So they definitely need you, Jason, if you don’t get a team, none of this matters.

[00:35:01]

Jason: That’s true. If they’re so unmotivated, they’re not closing any deals or calling anybody. Yeah, that doesn’t matter. That’s

[00:35:08]

Michele: right. Okay. So next to that, um, uh, you know, there are so many things that can keep you up at night, but, um, you know what I would say, she just have to have good compliance partner.

[00:35:17] Uh, you know, I say that it’s my job, uh, to make sure that my clients can rest easy. And it’s for exactly this reason, because we’ve already considered what all of the potential outcomes are. We know. Uh, you know, where the hotspots are. We know how to take care of those in a way that doesn’t kill sales.

[00:35:33] It’s just, it’s really important to you should not lose sleep. You should, uh, be proactive and making sure you’re checking all the boxes and in a way that still makes, uh, you know, business doable, the concern. Actually, it’s not a concern. It’s a such a huge irritant for me, uh, is that, uh, you know, I’ll hear regulators, uh, say that, you know, the people that are making the money or all of the bad guys, and I look at it and said, no, no, it’s not the ones that are the ones that are doing it.

[00:36:00] Right. Because you know, you’re, you’re not coming into contact with them is the reason you don’t know, they all exist, but they most certainly exist. And they most certainly are making it work. Consumers still do like to have phone calls, but they want to expect those phone calls and then they want good service and they want persuasion, uh, you know, when they’re on the telephone and it has to happen that way.

[00:36:20] That just has to,

[00:36:22]

Jason: yeah. And yeah, I couldn’t agree with that more. Now, one of the things I know that you bring up a bunch when you’re talking about this is that there’s two kinds of situations that happen, especially with you as an attorney is there’s the people who are proactive and want to build that compliance and not lose sleep.

[00:36:45] And not that they’re going to let you lose the sleep, but let you do what you can. And helping them again with that defensible position. It’s not that can avoid any challenges, but just being able to defend it when it does come, cause complaints will always happen. And then there’s the other group, which is, oops.

[00:37:00] Now I need your help. What is it like you want to say, or what is the keeps those people who are just waiting for it to come from, like getting it set up the right way. Okay.

[00:37:14]

Michele: I think they fall into a couple of different categories, the primary of which would be, uh, they didn’t know what they didn’t know.

[00:37:23] And so that’s the Rumsfeld unknown, unknown as it’s been called. Uh, we, we see a large category of those folks or, um, the other kind that we see frequently is the ones that built it in as a, maybe a cost of doing business, that something like this would happen. And I think once they realize what the actual cost was to that potentially, I mean, we were looking at potentially $1,500 per call that very quickly gets larger than what my calculator can capture.

[00:37:53] Uh, then I would say that that’s a bad calculation, uh, to make, so w we see those, those types

[00:37:59]

Jason: as well. Got it makes sense. Um, in obviously, and what you wish, if you could wave a magic wand was for everyone to approach you first. Yeah. Build that compliance and keep in mind everything that’s possible and do it in the way that the government wants over time.

[00:38:15] Just get that set up, build a defensible position. So hopefully people listening to this, it’s not about scaring everybody or worrying everybody it’s about, okay. Just start putting those things in place. And I can say again, working with enough organizations, it seems overwhelming and daunting. And we talked about early on.

[00:38:31] It’s just start knocking those compliance dominoes down bit by bit. Just getting to where you need to be for people who listening to this are still tuned in having freaked out and deleted the episode and moved on to something more fun and exciting people who want to get in touch with you. I know that there’s the main website for your law firm is M S law group.com.

[00:38:55] There was also a really good blog on there with lots of constant updates. I know that you’re on LinkedIn, Michelle Schuster. And then I know because I learned this, uh, in your name for people who want to spell it, it’s one L no C in the year two names, and then also pace association.org, which is what you mentioned earlier for customer engagement, the professional association, any other good places where people can go resources, any other places where you’re at, where they can get a hold.

[00:39:23]

Michele: Speaking a lot in the next couple of months, I’ll be at the, um, pace ACX, eh, I think it’s September 18th and 19th. If I have that. Right. Uh, and then I’ll be at so cap, uh, the second week of October and then leads con the third week of October. So it starts to get busy. That is, uh, if, uh, COVID, doesn’t shut everything down, which keeping my fingers crossed.

[00:39:48]

Jason: Yeah, it looks like it might. I know a couple of things that moved or changed, but, uh, hopefully everything will keep on going and, uh, people will be safe and things can return. So, Michelle, thank you for coming on here. Uh, I actually, I really enjoy this. I think this is such an important thing for companies to be focused on so that they can do that and sell all at the same time.

[00:40:09] So thank you for coming on here and sharing all this and uh, giving people so much value. I appreciate.

[00:40:15]

Michele: You’re welcome. It’s been my pleasure.

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