Call Recording: It Pays to Know the Rules, But Rules Vary By State


Call Recording: It Pays to Know the Rules, But Rules Vary By State

By Paula Bernier, Executive Editor, TMC  |  November 10, 2014

When it is ok to call and/or record conversations with people has recently become a heightened area of debate in communications and legal circles.

One hotbed of activity on this front is in California, which has a somewhat unique legal approach to call recording, in that the state says it is allowable only in instances in which both parties have given consent. (Meanwhile, federal law requires consent from only one of the parties.)

The Golden State has seen hundreds of folks file class action lawsuits alleging calls in which they participated were recorded without their consent, and millions of dollars have in turn been doled out by organizations to settle these claims.

Restaurant Applebee’s, retailer Bass Pro Outdoor World (which reportedly paid out a $6 million settlement), and financial outfit Capitol One are among the businesses recently targeted with call recording-related lawsuits.

Hilton Worldwide Inc. was also recently the subject of a call recording lawsuit. In this case, however, the case went to court and the judge ruled in favor of the hotel. The plaintiff’s claim that the company recorded his cell phone conversation in which he provided updated credit card information doesn’t apply to the state statute, the judge reportedly ruled, because it doesn’t apply to cell phone users.

Meanwhile, across the country in Maine, call recording practices and rules came into question when a reporter recorded a call in which the Maine Heritage Policy Center was meeting to decide how to respond to an ad targeting gubernatorial candidate and U.S. Rep, Mike Michaud. The argument here hinges on the group’s claim that the reporter was invited to the call, and whether or not the reporter made his presence known on the call. No decision was made on this case as of press time.

At the recent SmartVoice Conference, which was co-located with ITEXPO (News - Alert) in Las Vegas,

Evan Kahan, COO at interactions recording company Numonix, said some of the things to consider when implementing call recording strategy are how long to store and how frequently to purge recordings. He added it’s also important to figure out how to inform people their conversations are going to be recorded. The answer is probably an easy one when it comes to incoming callers, who can be greeted with a recording letting them know their call may be recorded, he said, but what about people who are reached via outbound calls?

There’s also a lot of legal action these days related to the Telephone Consumer Protection Act, which was created and signed into law in the 1990s in an effort to prevent people from getting calls and other communications that they have to pay for, but don’t want to receive. And TCPA and FCC (News - Alert) rules prohibit making auto dialed or prerecorded non-emergency calls to a wireless phone number for which the called party is charged a fee.

Litigation related to the TCPA has exploded in the last few years, and damages can be steep – up to $1,500 per call or text. A popular pizza chain last year agreed to pay more than $16 million in damages to settle a nationwide class action lawsuit alleging it unlawfully advertised its pizzas by unwanted SMS text messages. A vehicle maintenance brand shelled out $47 million in a separate settlement. And a major financial firm and three collections agencies recently announced a cash settlement of $75.5 million.

That said, companies that use auto-dialers need to know whether a phone number is a landline or associated with a mobile device, notes Becky Burr, deputy general counsel and chief privacy officer at Neustar. If it is a mobile number, she says, a company needs to verify it has prior consent to communicate using automated technology and that the person who gave consent still owns the number.

In yet another twist to TCPA, there’s now a conversation circulating as to whether a voicemail delivery system that sends messages direct to voicemail is prohibited, notes The CommLaw Group. This conversation was sparked in July by a VoApps filing that requests a declaratory ruling to say its voicemail system does not violate TCPA. The FCC has issued a public notice seeking comment on the matter.

The lesson here, whether you’re talking about call recording or TCPA compliance, is that it’s important to keep abreast of these legal activities and, more to the point, be conservative in how your processes and solutions address these situations, given rulings on these things are varied and may differ depending upon geography.  

Edited by Maurice Nagle
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