How Call Centers Can Use Interaction Analytics to Support Compliance with TCPA Changes

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1 How Call Centers Can Use Interaction Analytics to Support Compliance with TCPA Changes RANKED #1 in Customer Satisfaction among SPEECH ANALYTICS VENDORS Independent Analysts Surveys

2 How Call Centers Can Use Interaction Analytics to Support Compliance with TCPA Changes Changes the FCC made to the Telephone Consumer Protection Act (TCPA) in 2015 clearly tilted the regulations even more in favor of consumers and increased the consequences of non-compliance. Some of the notable changes made it easier for consumers to revoke their consent to be contacted, limited the informational, nontelemarketing calls that companies can make to their customers, and extended TCPA protections to cover text messaging. As these changes are occurring, attorneys continue to test the limits of the regulations by filing complaints and class action lawsuits. This combination of factors is making compliance with the TCPA harder, not easier, despite the FCC s efforts to bring clarity. For evidence, look no further than the millions of dollars of fines and other penalties the FCC continues to announce. These developments compel organizations to make corresponding changes to their contact center operations and compliance programs. Organizations that call consumers got few new protections from the TCPA update. However, they can take advantage of new protections available through interaction analytics technology. Analytics is a proven resource for helping contact center operators comply with TCPA and other regulations while simultaneously improving customer satisfaction. Interaction Analytics can specifically help organizations comply with the stringent new prior express consent (PEC) requirements of the TCPA, as this white paper will explain. Summary of TCPA Changes The complete update the FCC issued on July 10, 2015 is more than 100 pages long and provides many detailed explanations of how various TCPA provisions will be interpreted and applied. Most of the regulatory changes relate to three topics: Defining what constitutes the automatic telephone dialing system (ATDS) technology that is governed by the regulation Eliminating the regulatory distinction between marketing and informational calls; Creating new rules for how consumers can establish and revoke consent to be contacted (PEC); Some of the other notable changes and clarifications include affirming that text messages will be treated as calls for TCPA enforcement purposes, establishing a one-time, no-violation exemption for contacts made to reassigned telephone numbers, and affirming the legality of call-blocking technology. The complete, downloadable text of the FCC ruling is available at document/tcpa-omnibus-declaratory-ruling-and-order.

3 The Cost of Uncertainty Since the TCPA s inception, telecommunications technology and marketing practices have evolved faster than TCPA regulations, which has created several areas of uncertainty for organizations that contact their customers by phone, text or . Unfortunately, many of these uncertainties had to be resolved by court decisions, which have produced millions of dollars in fines for firms that were found to be non-compliant. The new regulations introduced in 2015 create new uncertainties as to how they will be interpreted. Wherever there is uncertainty, there is risk of non-compliance. The price of such risk remains steep. The TCPA penalties for impermissible contact are the actual monetary loss suffered by the contacted party or $500, whichever is higher, and damages are tripled if the violation is considered willful. In December 2015 Western Union agreed to pay $8.5 million to settle a class action suit, which was one of the largest penalties ever for a TCPA case. That capped a year in which many other large companies with extensive contact center operations were charged and/or fined for TCPA violations, including Bank of America, Dish Network, TimeWarner Cable and Yahoo. There is no cap on damages for TCPA violations and attorney fees can be included. The uncertainty arising from new regulations, and the potential payoff for successful lawsuits, will likely encourage more class action and individual lawsuits against companies in 2016 and beyond. Changes to the TCPA and the climate they have created should prompt organizations to review and strengthen their compliance processes. Examining Changes to PEC Interaction Analytics can specifically support compliance with the TCPA s prior express consent provision, which was a challenge for callers even before the 2015 revision made the rule more favorable for consumers. What constitutes consent has long been open to interpretation and dispute and has produced numerous charges of TCPA violations. The 2015 TCPA update did little to clarify what constitutes consent, but did make it substantially easier for consumers to revoke consent, which opens the door to more compliance violations. Here is a key passage on consent from the 2015 FCC ruling: Additionally, we clarify that a called party may revoke consent at any time and through any reasonable means. A caller may not limit the manner in which revocation may occur. Moreover, we emphasize that regardless of the means by which a caller obtains consent, under longstanding Commission precedent, if any question arises as to whether prior express consent was provided by a call recipient, the burden is on the caller to prove that it obtained the necessary prior express consent. There are at least two elements of that passage that raise the compliance challenge. First, the contacting organization can no longer set the terms for how consumers can opt out of being contacted. The four simple words, through any reasonable means, essentially rewrites the terms for revoking consent into consumers failure. A caller may not limit the manner in which revocation may occur reinforces the consumer protection. That statement means callers (which also refers to organizations that make contact by text, and other channels) cannot require consumers to revoke consent in writing, by visiting the caller s website, or other caller-defined methods. Consumers may opt out simply by stating their intention.

4 Second, the contacting organization has the burden of proof to show it obtained consent to contact the consumer. If there is a dispute because a consumer claims to have revoked consent, the burden is also on the contacting organization to prove revocation did not occur. Proving something did not happen is much more challenging than proving something did happen (such as obtaining consent). The major components for our Compliance Score are calibrated to identify required disclosures (mini-miranda, recording, TCPA consent, etc.), prohibited language (threats, abusive language), proper identification of agent, and proper verification of consumer. Kyle Carter AXCESS Financial Director of Compliance Collections / Customer Service Because of these changes, it is essential for organizations to document all contacts with consumers. Comprehensive archived call recordings and text/ records will be invaluable for showing that consent was obtained and defending against claims that it was later revoked. The Risk from Reassigned Numbers Consent applies specifically for contact made to an individual, not a specific phone number. If the individual changes phone numbers the calling party no longer has the right to call or text the old number even if it still has consent to contact the individual, and the individual did not inform the calling party of the number change. This controversial provision of the TCPA has caused numerous violations because of calls and texts made to numbers that had been recycled. The 2015 revision left the reassigned number liability in place but granted contacting organizations a safe harbor that allows them to make one contact to a recycled number without violation. The one-time exemption is strict for example, if the first contact to a recycled number is a phone call that goes unanswered, a second call would constitute a violation even though the calling organization didn t speak to anyone the first time to learn the number no longer belonged to the intended party. How Interaction Analytics Can Improve Compliance Interaction Analytics technology can help organizations meet the stringent new TCPA compliance requirements by automatically monitoring and documenting all contacts. Interaction Analytics provides the feedback and intelligent analysis that organizations can use to improve agent performance and to optimize their customer engagement and outcomes. Interaction Analytics technology automatically records, transcribes and analyzes 100 percent of call, and text interactions with customers. The technology automates the process of taking unstructured information that is trapped in customer phone calls, texts, s and social media streams and turns it into structured information that can be searched and analyzed. Because contact contents are searchable, organizations can easily determine which customers have provided express consent to be contacted. When combined with other metadata, such as which agent handled the call or customer details from a CRM system, Interaction Analytics can deliver tremendous value and insight. This omni-channel analytics process commonly occurs across a wide body of recorded phone calls and other contacts. It does an excellent job at trend discovery and root cause analysis, and helps create a consistent customer experience across channels.

5 I thought we were too small to use a Interaction Analytics solution, but as compliance became a bigger part of our customer expectations, analytics made a lot more sense. Nicki Noyes Stoneleigh Recovery Services Automated real-time monitoring, also commonly referred to as real-time speech analytics, enables decision support that occurs while a call is still live. This decision support applies to either agents or supervisors. Agents can receive next-best-action guidance reminders, script adherence notifications or other assistance such as a reminder to obtain consent to contact the customer in the future all based on what is happening on the live call. Similarly, supervisors can get an overview of every ongoing call for a group of agents and automatically be notified of escalations or calls that require immediate action or course correction. One of the greatest strengths of real-time monitoring is de-escalation and saving calls that might otherwise result in dissatisfied customers, which helps companies to optimize customer engagements. The white paper Getting Started with Real-Time Speech Analytics provides additional information about how the technology works and how it is being applied for sales, customer service, compliance monitoring and other common use cases. If it s not quantifiable, it s not coachable. The overall value of our analytics operation is indisputable from a compliance perspective. You can t put a dollar sign on the value. Rhonda Ludbrook Mercedes-Benz Financial Services Interaction Analytics technology has capabilities that are especially effective for dealing with the prior express consent and reassigned number risks of the revised TCPA. Independent of whether Interaction Analytics is used, to comply with the TCPA organizations must train their agents to obtain prior express consent, document when PEC is obtained and revoked, maintain archives to provide proof of consent, and keep records up-to-date to minimize contacts made to recycled numbers. Interaction Analytics supports all these efforts.

6 Documenting Consent Because Interaction Analytics not only records customer contacts but can analyze the contents, the technology supports compliance with PEC requirements in several ways. First, organizations can use analytics to search their contact records and produce a list of customers for whom no consent has been obtained. Additional analysis can be used to automatically create a scorecard that shows each agent s success rate for gaining consent and proper handling of consent revocation requests. This specific, agent-level feedback is a gift that can be used to allocate resources for training and coaching to where they are needed most. Interaction Analytics also supports improved compliance because the technology can track any language or activity the user wants to monitor, such as whether Mini Miranda language was used on a call, whether required disclosures were made, and any language that the organization considers risk for its business and compliance requirements. Providing Documentation Having searchable, omni-channel archives of all customer contacts saves time when organizations need to prove they have PEC. In the event of a dispute or audit, organizations can use their Interaction Analytics solution to quickly search archives and obtain a recording or other documentation of how the contacted party provided consent. Having accurate, readily accessible records is a deterrent to frivolous lawsuits. Preventing Problems before They Lead to Revocation By using automated real-time monitoring, organizations can flag in-progress calls where customers are unhappy and may revoke consent to be contacted again. Identifying problem calls can trigger an appropriate response, such as prompting the agent to change to a new script or having a supervisor intervene in an attempt to satisfy the customer. Such actions not only reduce the risk of consent revocation, but promote better overall call resolution and higher customer satisfaction. Interaction Analytics is well proven for improving customer satisfaction. That is not the focus of this white paper, but for more information, case studies and other examples visit the CallMiner Learning Center. Identifying Recycled Phone Numbers When calls are answered by voic , the voic greeting can be analyzed to determine if there is a potential mismatch with the intended party. For example if the greeting says Hello, you ve reached Steve and the intended recipient is named Michelle, the analytics solution could issue an alert for the contacting organization not to make any more contacts to the number until it is verified. It is important to note that the monitoring and benefits described above apply to 100 percent of contacts. The comprehensive coverage is a major difference between using Interaction Analytics and manual methods for quality assurance. In traditional, manual operations, contact center supervisors listen to a small percentage of each agent s calls, and draw conclusions about performance, compliance and training requirements from that small sample. Interaction Analytics monitors, scores and archives 100 percent of contacts. Not only does analytics provide a much more robust data set, it provides advanced analysis and reporting that is impractical if not impossible with manual monitoring. Originally we started using CallMiner Eureka for compliance purposes. Now we are using CallMiner for performance measures such as call progression, tax time talk off, excessive silence etc... We have found great success with CallMiner. Director of Compliance Financial Services Provider

7 Conclusion The TCPA regulatory environment has become decidedly more consumer friendly and the changes made in 2015 have made it more difficult for companies to comply. One step companies must take to minimize risk exposure is to comprehensively document all their contacts with customers, and specifically document that they have received prior express consent. Companies also need to train agents on how to handle consent revocation requests, diffuse situations that can lead to consent revocation, and avoid other behaviors and language that lead to customer dissatisfaction. Interaction Analytics is a valuable resource for supporting TCPA compliance because it satisfies documentation requirements while providing the feedback organizations need to make meaningful improvements to agent performance and customer satisfaction. Interaction Analytics automatically and comprehensively documents customer contact activity, and provides the insight needed to improve it. Each organization values these benefits differently, so when considering the potential ROI an interaction analytics solution could provide it is important to account for all the documentable and soft benefits that are important to the organization. CallMiner can help companies see how interaction analytics can improve their operations and profitability. CallMiner offers free test drives of its interaction analytics platform that analyzes contact data to show companies potential areas for improvement. CallMiner believes that resolution is the fundamental driver of positive customer experiences. When contact center agents and others responsible for customer engagement are enabled by insight and feedback in real-time, they can dramatically improve the rate and speed of positive outcomes. With the tagline Listen to Your Customers, Improve Your Business our goal is to help companies automate the overwhelming process of extracting insight from phone calls, chats, s and social media to dramatically improve customer service and sales, reduce the cost of service delivery, mitigate risk, and identify areas for process and product improvement. Highlighted by multiple customer achievement awards, CallMiner has consistently ranked highest in customer satisfaction, including surveys conducted by DMG Consulting and Ovum. For more information, please contact CallMiner at (781) , or visit

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