- 11,996
If press 1 leads are illegal than why are they still being sold by certain lead companies?
Everyone's just breaking the law I guess lol.
The FTC has taken aggressive
action against some of the biggest players in the robo-call
business, including permanently stopping the defendants in
Voice Marketing, Inc., and VoiceBlaze, who paid civil penalties
after allegedly providing services enabling marketers to deliver
tens of millions of robocalls for pennies a call.
http://www.ftc.gov/os/highlights/2012/ftc-highlights.pdf
I don't know the answer to your question. There are even recruiters and agencies promoting these, but they're clearly illegal.
I'll quote myself:
Some people think your activities are exempt from the FTC’s jurisdiction. After taking the time to evaluate your claims at their face, there are a few flaws. Admittedly the language is confusing, but in reviewing the situation as a whole, it becomes clear what that exemption really applies to. Let’s start with something basic:
The FTC has jurisdiction over the DNC registry and that law does prevent individuals from receiving telemarketing calls from insurance agents to sell insurance products. We already know that. The same legal theory you believe applies to the ban on the voice broadcasting would also be able to invalidate that, but it hasn’t. That in and of itself should clear up the misunderstanding, but there is plenty more.
Let’s evaluate the exemption for non-profits vs non-profits that hire other firms to do their marketing. Non-profits can do their own marketing and can actually have other companies do it as well, provided the other companies are doing it for free as well. If the telemarketer making calls on behalf of a non-profit receives compensation for making said calls then they are profiting from it and now it is a for-profit business to consumer call which is exactly what is expressly prohibited. That is the reason why it can’t get contracted out. Seems like a small thing, but that’s where the line is. If I have a non-profit and hire a telemarketer to come work for me I can pay them as an employee, I just can’t pay them as a business if I want to call on numbers listed in the DNC.
Let’s also go back to the portion of the law that specifically states that insurance companies are exempt. If we were talking about an agency situation where the agent was captive to a specific carrier it would be worth spending some time getting into the details of that, but the reality is we’re for the purposes of this thread now talking about independent agents. Independent agents are 1099, non-employee contractors. They by definition are not employees of the company and are not part of the insurance company. Again, if we were talking about a w2 organization then that may be a different story, but a w2 agent would have their companies compliance agent/attorney able to guide them with the companies position on this.
Now let’s talking about the HIPAA exemption. If you read through the law, it doesn’t give carte blanche approval for all “HIPAA related calls”.
Healthcare Message Exemption
This exemption is limited to calls permitted under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), pursuant to regulations issued by the Department of Health and Human Services. The only healthcare calls that are exempt are those “made by, or on behalf of, a covered entity or its business associate, as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.”
The HIPAA Privacy Rule permits only three types of calls, whether “live” or prerecorded, by a healthcare provider or its business associates without a patient’s prior authorization – namely: (1) calls to describe a health-related product or service that is provided by, or included in a plan of benefits of, the covered entity making the communication; (2) calls for treatment of the individual; and (3) calls for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers, or settings of care to the individual. Only these three categories of prerecorded healthcare message calls are exempt from the 2008 TSR amendments prohibiting telemarketing calls that deliver a prerecorded message. Some examples of exempt healthcare-related HIPAA calls are:
Prerecorded message calls made by or on behalf of a pharmacy to provide prescription refill reminders;
Prerecorded message calls made by or on behalf of a medical provider to provide medical appointment or other reminders (e.g., availability of flu shots or mammograms);
Prerecorded message calls made by or on behalf of a durable medical equipment supplier to document that a patient has used his or her current supply (e.g., of insulin needles or respiratory supplies) before sending additional supplies; and
Prerecorded message calls by or on behalf of a case manager to check on a patient’s condition.
Prerecorded messages involving products or services not prescribed by a doctor or other healthcare provider as part of a plan of treatment, and therefore not within the healthcare exemption would include, for example:
Prerecorded message calls made by or on behalf of a provider of vitamins, minerals, or alternative medical therapies;
Prerecorded message calls made by or on behalf of a provider of gym or health club memberships; or
Prerecorded message calls made by or on behalf of a provider of weight loss products or programs.
In one sentence it makes it perfectly clear: “Prerecorded messages involving products or services not prescribed by a doctor or other healthcare provider as part of a plan of treatment, and therefore not within the healthcare exemption ”
To circle back to a point above, the TSR isn’t just a ban on voice broadcasting, it’s the totality of the laws the FTC has referred to as the “Telemarketing Sales Rule”. This is most notably in reference to the DNC registry and restrictions on when folks can and cannot be telemarketed, but the most recent ban on voice broadcasting is simply an addition to the existing rule or set of rules.
Unfortunately it’s perfectly clear that the exemptions noted in the law specifically apply to business, companies, and providers using voice broadcasting tools to more or less conduct business with existing clients and/or individuals they have an existing relationship with. It is remarkably clear that even within the exemptions, as soon as a company crosses from providing their service to trying to sell something (a doctor calling to remind a patient about an appointment vs trying to sell them vitamins), it crosses the line and becomes a sales call that is regulated by the FTC, regardless of the industry.
