BRG Research Services

TCPA GUIDELINES & BEST PRACTICES

I. AGENCIES

1. No Autodialing of Cell phones or Sending of Texts – The default should be that BBG Research Services should not send or instruct anyone else to send any text messages, or make any calls, in connection with a calling/text campaign for its client, to any wireless telephone number using an automatic telephone dialing system (“ATDS”). The FCC has recently issues rulings broadly interpreting what constitutes an ATDS. It has ruled that it includes a predictive dialer or auto dialer, as well as any other system that has the capacity to store or produce and dial random or sequential numbers, even if it is not presently used for that purpose. Also, if the system is divided between multiple entities that work in concert to make the calls, that still constitutes an ATDS.

2. Manual Dialing of Cell phones (Only If Cell phones Are Necessary) - If it is necessary to call Cell phones, then the calls should be dialed manually, without the use of an ATDS and on a system that does not have the capacity to predicatively dial, autodial or to store or produce and dial random or sequential numbers. However, BRG Research shall subscribe to services, on a paid basis, that actively screens phone numbers that identify cell-phone vs. land line and retain complete compliance itself.

NOTE: THE USE OF MANUAL DIALING ON AN ATDS IS NOT NECESSARILY TCPA COMPLIANT. BRG HEREBY WARRANTIES THAT OUR EQUIPMENT IS TCPA COMPLIANT, AS WELL AS, WE PROVIDE INDEMNIFICATION TO OUR CLIENTS FOR A BREACH OF THIS PROTOCAL – SEE SECTION II.4 BELOW.

3. Autodialing or Texting (Only If Necessary) - If it is necessary to make calls to Cell phones using an ATDS or send text messages for a campaign, then a client will be required to pay a one-time fee to have their sample screened against a telephone verification system and the Do Not Call registry, to ensure that TCPA compliance also applies to the client’s lists, Pursuant to Section II below.

4. Revocation Requests and Wrong Numbers Should Be Acted Upon Immediately – Any list to be used for a text or telephone campaign containing wireless phone numbers or landlines should be updated within the shortest reasonable time from the date of a revocation request or the dialing of a wrong number. A record should be made of any revocations or wrong numbers that occur on calls or through texts or otherwise during the campaign and any such numbers should immediately be taken off the list. Such instructions must to be given to all interviewers, managers, project directors and quality control agents to make calls or send texts or to supply lists.

5. National Do Not Call Registry Scrubbing Needs to Occur – When practicable, telephone lists should also be scrubbed to remove any numbers registered on the National Do Not Call Registry and any individual state’s Do Not Call Registry.

6. Company Do Not Call Registry Should Be Kept – BRG Research keeps a record of all requests to not be called again (a Company Do Not Call List), and such requests are implemented as soon as possible and no longer than 30 days from the request. BRG honors all requests for inclusion into our internal DNC database, which is kept for a period of at least 5 years.

7. No Telemarketing/Solicitation Calls Using Prerecorded Messages – BRG Research does not engage in telemarketing/solicitation calls using prerecorded messages or “robocalls”.
8. Records of Prior Express Written Consent Must Be Kept - For any text messaging or telephone campaign or survey that includes wireless numbers that are autodialed using an ATDS, any list of wireless numbers used must be checked to insure that for each number there is a record of a written prior express consent agreement signed by the subscriber of the wireless number (the “Prior Written Express Consent Agreement”).

• The Prior Written Express Consent Agreement for each wireless number on a list can be by electronic signature, but must include clear and conspicuous disclosures that inform the consumer that by executing the agreement (i) she authorizes the seller to deliver telephone calls/texts using an automatic dialer or an artificial or prerecorded voice; and (ii) that she is not required to sign the agreement (directly or indirectly), or agree to enter into such an agreement, as a condition of purchasing any property, goods, or services.

• Reassignment - All lists containing wireless numbers should be updated every 15 minutes to account for the reassignment of wireless numbers to new subscribers and the vendor/client must establish that new Prior Written Express Consent Agreements were obtained for all new reassigned subscribers. One call is allowed to a reassigned number without having consent from the new subscriber. After the one call, knowledge of lack of consent will be presumed for the new subscriber if consent has not been provided. This knowledge is presumed for BRG and BRG’s subcontractors, if they are ever employed by BRG. BRG Research should confirm to the client that it is updated its lists accordingly to account for reassigned numbers. No Cell phone list should be used for an extended period of time without insuring that it is up-to-date.

9. Fax Ads or Solicitations Need To Be Sent by Third Party Vendor Who Has Obtained Prior Consent and Uses Proper Opt-Out Language – Any solicitation or ad sent via fax must be sent using a third party vendor, since BRG Research Services does not offer this service and only to fax numbers for which there is a prior business relationship that has provided their fax number to the client or vendor. The fax must also contain the below Opt-Out language on the first page in a clear and conspicuous manner.

• Opt-Out Language – The first page of the fax must clearly and conspicuously state or contain the following: (i) state that the recipient may request to not be sent future faxes, (ii) state that the failure to comply with the request within 30 days is unlawful, and (iii) contain a telephone number, fax number and cost-free mechanism (i.e., a toll-free number, local number, website or email address) to opt-out of faxes, which must be available 24 hours a day/7 days a week.

• Opt Out Requests Must Be Honored Within 30 Days

II. THIRD PARTIES

1. Third Party calling centers, to which BRG Research Services may sub-contract data collection work, and list providers (and the client if the client has supplied the list) should follow the above procedures in Section I for Agencies, as well as the below for Third Parties.

2. Scrubbing of All Lists for Cell phones – BRG Research and client supplied lists should be scrubbed to eliminate Cell phones (if it is necessary to use Cell phones, see Item 4 below, as well as Section 1 above). BRG Research Services shall encourage all clients to subscribe to a sample screening service, such as Neustar, which is specifically mentioned in the FCC’s TCPA ruling, as an agency with a high reputation for identifying and isolating known cell phone numbers. As of August 20th, 2015, the yearly fee for a subscription service agreement to Neustar is only $1,400.00 which identifies ported, cell-phone, landline and is updated every 15 minutes.

a. Porting – Scrubbed lists need to be updated daily to account for landlines that were ported by the subscriber to a wireless number. Such ported number need to be taken off the scrubbed list unless there is a Prior Written Express Consent Agreement (See Section I.8 above).

NOTE: VENDORS THAT SUPPLY SCRUBBED LISTS SHOULD REP AND WARRANT THAT THEIR LISTS ARE SCRUBBED FOR CELL PHONES AND INDEMNIFY THE AGENCY FOR A BREACH OF THIS REP AND WARRANTY. SEE 4 BELOW

3. Caller ID Should Identify Vendor, Not The Client or Agency- The number that is displayed or indicated on the call should be a number associated with BRG Research Services and not a number that indicates that the call is being made by the contracting agency or its end-client. The number displayed cannot be misleading or inaccurate, it must display accurate information identifying the vendor. “BRG Research Services” currently displays on all caller IDs with the phone number 8887585316.

• Upon request, the vendor must also identify on whose behalf the call was made.

NOTE: THIS SHOULD BE DISCUSSED WITH THE CLIENT BEFORE IMPLEMENTING.

4. Reps & Warranties/Indemnity Should Be Obtained From All Vendors/Clients That Provide Lists or Make Calls

• List Providers for Lists Without Cell phones Must Rep and Warrant that Lists are Scrubbed for Cell phones – If no Cell phones are to be used, all list providers, including clients, should represent and warrant that the list does not contain any wireless telephone numbers. The provider should also indemnify the agency for any violations of the TCPA that result from calling any of the numbers provided that turn out to actually be wireless numbers.

• List Providers for Lists With Cell phones Must Rep and Warrant that They Obtained Prior Express Written Consent - If a list needs to contain wireless numbers, the vendor/client should represent and warrant that it obtained a Prior Written Express Consent Agreement for each wireless number on the list, and that it will indemnify agency for any breach of this particular representation and warranty. The agency should require periodic confirmation in writing of compliance with this rep and warranty.
NOTE: CLIENT SUPPLIED LISTS NEED A SIMILAR REP AND WARRANTY FROM THE CLIENT.

• Call Centers Must Rep and Warrant That They Are TCPA Compliant - When using a third party vendor to make calls or send text messages in connection with a text messaging or telephone campaign, the agency should require the vendor to represent and warrant in writing that it is TCPA compliant and that it has proper procedures in place to maintain compliance with the TCPA. Those procedures should be provided to the agency for review. The vendor should also be required to indemnify the agency and the client for any claimed violations by the vendor of the TCPA. The agency should require periodic confirmation in writing of compliance with this rep and warranty.
• Limitation of Liability – If a third party vendor contract contains a provision capping or limiting the vendor’s liability, language should be added excluding liability for TCPA violations from any such cap or limitation.

5. Predictive Dialer Must Only Drop 3% or Less of Calls - If a predictive dialing system will be used for a telephone campaign and certain calls are being abandoned/dropped after a period of “dead air,” the call center must take steps to insure that only 3% or less of the calls can be dropped for any given campaign. The drop rate is to be determined over a 30-day period of time during the campaign. If the campaign lasts for more than 30 days, the drop rate needs to be recalculated each subsequent 30-day period.

• All vendors hired by the agency that use a predictive dialing system must supply the agency with periodic reports showing compliance with this requirement.

6. Fax Ads or Solicitations – All third party vendors should comply with the requirements set forth in Item 9 above in Section I for Agencies with respect to Fax Ads or Solicitations.