[Kristin]

We are trying to understand the implications of both the 2012 Amendment and the 2015 “Declaratory Ruling” on our processes.
I’m most concerned about the “Capacity” concept – when does is matter and it really a theoretical test?

Did the old standard of prior existing relationship essentially become inadequate?
If our processes only allow for a human to physically contact a customer for verbal cross-sales efforts are we now required to obtain Written Express consent just because we have a computer-based phone system?

If so, can anyone provide insight on how you are handling this?

Topic

[rcooper]

I haven’t studied this particular issue. I’ll take a look and get back to you.

[rcooper]

I’m most concerned about the “Capacity” concept – when does is matter and it really a theoretical test?

It seems as though it is based on your system’s ability/capacity to autodial even if you aren’t using it for that purpose at the time the call is made.

Did the old standard of prior existing relationship essentially become inadequate?

Yes

If our processes only allow for a human to physically contact a customer for verbal cross-sales efforts are we now required to obtain Written Express consent just because we have a computer-based phone system?

If your concern is that your telephone system qualifies as automatic telephone dialer system (ATDS) and you do not use prerecorded or artificial voice message technology, it seems it depends if you are calling a land line or mobile device.

I’ve linked a couple of articles that give good summaries of the rules:
https://www.acc.com/accdocket/onlineexclusives/tcpa.cfm
https://www.kelleydrye.com/publications/client_advisories/0985

Also, the ABA is offering a webinar on this topic later this month.

[Author]

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