FCC RULING: A PRACTICAL DISCUSSION

AGENDA Update of FCC Appeal Overview of key portions of FCC Ruling Operational considerations in wake of FCC Ruling

DISCLAIMER The materials in this Presentation are provided for informational purposes only and do not constitute legal advice. These materials are intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. Transmission of the information is not intended to create, and the receipt does not constitute, an attorney-client relationship. You should not act or rely on any information contained in this Presentation without first seeking the advice of an attorney.

FCC APPEAL PACE filed its Petition for Review of the July 10 th FCC Omnibus Declaratory Ruling on July 14 th. Also filed ACA Sirius XM Radio Consolidated in District of Columbia Circuit Court Several parties have filed a Motion to Intervene Briefing will likely extend into 2016 PACE will request Oral argument Median time from initial notice to decision in D.C. Circuit is 13.4 months.

DEFINITION OF ATDS 2015 Ruling Equipment can be an ATDS if it has the "potential capacity" to function as an ATDS Rejects “present capacity” standard Equipment can have the requisite capacity even if it requires additional software to function as an ATDS “Theoretical capacity” not sufficient Rotary phone is not an ATDS Stadium capacity analogy Rejects argument that ATDS must have the capacity to dial without human intervention

DEFINITION OF ATDS 2015 Ruling Cannot avoid TCPA by dividing up ownership of dialing equipment Declined to address exact contours of definition Reiterates prior TCPA rulings Predictive dialer is an ATDS ATDS provisions do not apply to speed dialing Basic function is to dial without human intervention Not an issue that smartphones may be an ATDS because no evidence individuals have been sued

DEFINITION OF ATDS Potential v. Theoretical Capacity Download software, updates, unlock ATDS feature? New hardware required? Time, effort and expense required? Third party platforms Access to and/or ability to modify system? Contractual restrictions?

DEFINITION OF ATDS Luna v. Shac Northern District of California (August 19, 2015) Holding: must have capacity to dial without human intervention to be an ATDS References FCC’s 2015 Ruling but no discussion of “potential capacity” Procedural limitations? Did not address whether Ruling could be applied retroactively

DO WE EMPLOY AN ATDS? Have you or your vendor employed dialer changes? What is your system designed to do? Is your system premise or cloud based? Is your system capabilities limited by licensing or design? Is your internal IT staff capable of modifying the system?

DO WE EMPLOY AN ATDS? Have you or your vendor employed dialer changes? What is your system designed to do? Is your system premise or cloud based? Is your system capabilities limited by licensing or design? Is your internal IT staff capable of modifying the system?

CONSIDER A TECHNICAL ANALYSIS 6-8 hour onsite discovery Involves marketing, sales, contact center manager, IT, system vendor, compliance/legal and select agents Review of customer/lead flow in and around the organization (leads and CRM databases) Suppression and wireless ID activities including file or record flags

CONSIDER A TECHNICAL ANALYSIS Campaign development including naming conventions, flags, hardware and software environments Campaign to system flow (system designation/limitations/controls) System functionality review (hardware/software/domain/access control/capabilities) Manager and agent access and interaction with CRM and dial systems

CONSIDER A TECHNICAL ANALYSIS Human Intervention steps Hardware, domain and network configurations Telephony configurations (PBX, softphones, desktop phones) Call Detail Records analysis Inspection of hardware, observation of agents using system, photos of equipment, gathering screenshots and network diagrams etc. Onsite out-briefing and report of findings and recommendations

REVOCATION OF CONSENT 2015 Ruling May revoke consent at any time and through any reasonable means Orally or in writing Inbound/outbound calls, in-store bill payment location No guidance on what is not a reasonable method Cannot limit manner in which consent may be revoked Must maintain proper business records to establish consent at the time the call was made

REVOCATION OF CONSENT Due to differences in requirements, consider maintaining revocation list separate from internal DNC list Avoid over-suppression for informational calls DNC request last 5 years Revocation of consent lasts indefinitely Agent training and training for any other employees at relevant consumer tough points How to properly respond How to document the revocations Maintain specific records The source and medium of revocation The date of revocation What about product/service specific revocation?

REASSIGNED NUMBERS 2015Ruling “Called party” means current subscriber or customary user One call “safe harbor” for calls to reassigned #s Must have consent to call prior subscriber and no knowledge of reassignment No notice requirement– constructive knowledge after one call No requirement for called party to notify caller or “bad faith” defense for businesses

REASSIGNED NUMBERS 2015 Ruling Best practices can mitigate risk Use available databases to detect reassignment Listen for disconnected tones or voic greetings Manually dial numbers (but see ATDS ruling) Procedures for updating contact info (mail, , etc.) Can sue your customers if they violate a contract that requires them to give notice when a number is relinquished!

WRONG PARTY CONTACTS Train agents to properly handle calls/texts when wrong-party contact is made known Indication via called party, voic or answering machine message, dial or disconnect tone Use specific scripting language Properly disposition the record Evaluate dialer dispositions to determine which may be a sign of a disconnected number or a call to the wrong party

WRONG PARTY CONTACTS Utilize: Data service providers with solutions that attempt to identify reassigned numbers or validate the current subscriber of the phone Maintain: The source and date of discovering reassigned number Limit: The number of call/texting attempts or lifetime of calling/texting campaigns where consumer has not been responsive

HOW DOES MOBILE SCORING WORK? An example of how one provider’s service works……… Customer provides list Phone numbers, first name, last name, and address Optional: Date of mobile collection or last customer contact PossibleNOW analyzes calling lists with the following databases Direct Marketing Association Wireless Block Identifier Neustar Intermodal Ported Telephone Number Service Telcordia Telemarketing Data Source Historical database of disconnected landline numbers National Directory Assistance Database Compiled Wireless Phone Number Database Telephone company network inquiry service PossibleNOW Identifies mobile numbers - optional Scores all mobile numbers Returns scored numbers via SFTP

HOW DOES MOBILE SCORING WORK? ScoreFE-EDCB-BA-A No match to any DB or bad data Landline match Landline & name or address match Mobile # to compiled DB Mobile # / address to compiled DB Mobile # / address / surname to compiled DB Mobile # / address / full name to compiled DB Mobile # / city / surname to Telco Mobile # / city / full name to Telco

CONTACT INFORMATION Michele Shuster Mac Murray, Petersen & Shuster Nick Whisler Mac Murray, Petersen & Shuster Ken Sponsler CompliancePoint