Express written consent may be written on paper or obtained electronically via a text message exchange between consumer and Client or online, and compliance with the E-SIGN Act satisfies this requirement. If express written consent is obtained via electronic signatures, Client will capture proof of same such as an IP Address, website pages that contain consumer consent language and fields, associated screenshot of the consent webpage as seen by the consumer where the phone number was inputted, complete data record submitted by the consumer (with time and date stamp), other identification sources sufficient to substantiate that express written consent was indeed obtained from the consumer and/or Screenshots for the record. All collected information is obtained for a minimum of four (4) years from the date of last contact with Client’s respective consumer.
4. Client agrees that any request for consent from consumers that will allow Client to make autodialed and/or pre-recorded calls or send text messages that are sent or made to a wireless telephone or a pre-recorded call made to a residential land line, will give consumer a CLEAR AND CONSPICIOUS DISCLOSURE that consumer will receive future text messages or calls that deliver autodialed and/or pre-recorded messages on behalf of Client; that consumer’s consent is not a condition of purchase; that consumer will be assessed standard message and data rates for text messages; and that consumer must designate a phone number at which to be reached.
5. Client agrees that prior express written consent for all text messages or auto-dialed calls to wireless telephones will meet the requirements of the October 16, 2013 effective rule change; and that such consent must include, but not be limited to, a clearly and conspicuously placed disclosure (for example, not simply in a terms weblink, but also directly in the text message or on the homepage or consumer collection page of the website in close proximity and readable font to the consumer entry point) that the consumer who is submitting their information agrees and consents to receive return telephone calls through the use of an “autodialer” from Client, and that consent to receive such calls or text messages “does not obligate the consumer to purchase.” The consent must be affirmatively consented to, such as through the use of an open-checkbox, and a screenshot and IP address (or other recordable proof) that is provided to MobiConcepts upon request and maintained for at least four years in an easily searchable format.
6. Client, agrees to assume any and all liability for any data residing on Client, and any of Client’s Agents, Affiliates, Associates, Assignees, Partners, successors in interest, or the like, account or sub accounts (Including but not limited to: consumer cell phone numbers) uploaded to the system or otherwise received via the system, which was acquired BEFORE October 16, 2013 and hereby represents and confirms to MobiConcepts that this data complies with the new amendments to the TCPA. If Client wishes to designate certain data as compliant while the rest is not in compliance, Client shall list such compliant data elements (names of Databases for example) in Exhibit B to this affidavit. If none of the data acquired prior to October 16, 2013 is compliant, please check below. By not checking below and not designating any certain data elements in Exhibit B client confirms that its entire data is compliant as discussed above.
Information Regarding New Telephone Consumer Protection Act (“TCPA”) Restrictions
On February 15, 2012 the FCC adopted additional restrictions to the TCPA. The new restrictions apply to businesses that use Automatic Telephone Dialing Systems (ATDS or “dialer”) to dial cellular or wireless phones for marketing and sales calls, SMS Text Messages, and/or placing pre-recorded calls made to residential land lines for marketing or sales calls. The restrictions went into effect October 16, 2013. The changes to the TCPA are as follows:
1. ATDS may not be used to dial cellular or wireless phones for marketing or sales calls, unless having first received prior express written permission from the consumer to call their cell phone with a dialer. The written consent must conspicuously tell the consumer, among other things, both that an “autodialer” will be used to dial their wireless number, and that the consumer’s consent does not obligate them to purchase.
2. Text/SMS messages that are auto-dialed or auto-sent to wireless devices also require prior express written consent.
3. Pre-recorded calls may not be made to residential land lines for marketing or sales calls unless having first received prior express written permission from the consumer to call their residential land line with a dialer. Pre-recorded message calls that are used for marketing or sales (Robo-calls) are expressly prohibited, unless a very specific prior written consent is obtained from the consumer consistent with TCPA regulations.
Definitions Pertinent to the Affidavit
The Telephone Consumer Protection Act (“TCPA”): Passed into law in 1991, the TCPA empowers the FCC to make rules and regulations following the TCPA. Generally the TCPA regulates the telemarketing industry by placing restrictions on telephone solicitations and the use of automated telephone equipment. Violations of the TCPA give individuals the right to file lawsuits and collect damages for up to $1500 per call.
Telemarketing call: Calls made to generate leads or solicit products or services to consumers. Informational calls and calls made for non-commercial purposes are exempt from FCC regulation, such as pure charitable calls.
Autodialed call: The FCC has a very broad definition of “autodialer.” It can best be described as equipment which has the capacity (regardless of whether or not it uses that capacity) to take a phone number that has been either previously produced by the equipment or has been previously stored in the equipment, and dial that phone number without human intervention. If you are unsure, we recommend that you consult with an attorney who has expertise in telemarketing law. SMS text messages to cell phones are considered “calls” under the TCPA. The TCPA applies to both voice and short message service (SMS) text messages, if they are transmitted for marketing purposes. The TCPA has been interpreted in recent years to prohibit the sending of unsolicited commercial text messages to cell phones – with limited exceptions (i.e., messages sent for real emergency purposes).
Robocall: is a phone call that uses an “autodialer” system to deliver a pre-recorded telemarketing message. The message is a pre-recorded voice, computer voice, or other artificial voice played to a consumer.
Abandoned call: an outbound telephone call is deemed “abandoned” if a person answers the telephone and the caller does not connect the call to a sales representative within two seconds of the called person’s completed greeting.
Do Not Call List: Consumers are entitled to place their wireless (cellular) and residential lines on a National Do Not Call List. Any reference to the Do Not Call List herein shall bear the same definition as that utilized in the Do-Not-Call Implementation Act, Public Law No. 108-10, 117 Stat. 557 (2003), codified at 15 U.S.C. § 6101.