Telemarking; Should you remove some telemarketers from your list? How to identify scripts you might want no part of – PART TWO

NOTE: This is the second post in a two-part article. Click here to read part one!

“This is Rachel at Cardholder Services” or “Bob from Home Security.” Don’t you just love jumping out of the shower or leaving the dinner table to answer calls like that? The recordings may have been innocently voiced years ago, but due to changes in phone technology, the illegal use of such come-ons has mushroomed in the past several years. Maybe there are only a few companies or individuals behind these billions of calls, but clearly they have spawned imitators, and we wouldn’t be surprised if some naive legitimate companies figure, “Hey, let’s try this ourselves.”

Last week we gave background on this subject. Now here are some questions to ask if you are offered what might be a telephony script.

Some robocalling is legal, depending on the type of call, type of caller, type of recipient, and so on.

When the rules are followed, telemarketing is an honorable and even valuable practice. But if you have qualms about your voice being possibly unappreciated by consumers, these yellow flags might be at least reason to ask some preliminary questions …

What do the watchdogs say? As standard procedure whenever you’re concerned about a prospective client’s reputation, check for actions against them on the FTC.gov website, the BBB, and other state and local consumer protection agencies.

Is it a “broadcast” phone script? That is, does the script speak to a random listener , with no hint of an existing relationship? For example, if it starts, “Attention, seniors …” or “Are you a business owner?” you might conclude that it’s not directed to a specific customer with whom the caller has an existing relationship, or even knows much about, if anything.

Is it red-flag subject matter? For example, does the message offer to lower the consumer’s credit card rate without identifying the lender or saying how? Does it concern a sweepstakes, a free cruise, medical alert device, grocery coupons, or a security lawn sign? These and various other offers and teasers are notorious within the illegal subgenre.

The FTC offers advice to consumers as to identifying possible phone scams, and suggests that the following categories might clue talent to carefully review:

• winning a foreign lottery
• low risk investments or other free bonuses or valuable prizes
• credit card interest rate reductions
• home security systems
• medical alert devices
• vacations
• auto warranties
• carpet cleaning
• solar panels
• air duct cleaning
• for profit education
• mortgage modifications
• debt relief

Is it clearly telephony, but there’s no provision for opting out? A legitimate prerecorded call is required to provide an automated interactive opt-out mechanism, at the start of the script. That’s not to say that a legitimate producer might not add these details in someone else’s voice, or later move them to the proper point in the recording. But if they’re omitted from the call altogether, the call is illegal. (If you encounter a script that puts this opt-out provision at the end of the message, beware. That’s where unscrupulous marketers tend to put it, and many authorities advise that consumers not “press 2 to opt out” — because that merely confirms that the caller has reached a live human being, and the opt-out request is often ignored. In fact, the marketer might then add the caller to a list sold to other marketers or cheats.)

Is the producer’s identity a mystery to you? If the end client’s identity and/or the producer’s identity is undisclosed, and it thus appears you’re recording a sales message for a fly-by-night outfit, perhaps you are.

Is the caller’s identity a mystery to the consumer being called? The FTC says “all artificial and prerecorded voice messages must state clearly, at the beginning of the message, the identity of the business, individual, or other entity that is responsible for initiating the call.” Furthermore, “if a business or other corporate entity is responsible for the call, the prerecorded voice message must contain that entity’s official business name, and the telephone number … during or after the prerecorded voice message.”

Is it a “mixed” informational/promotional message? Although certain “informational” messages are allowed (e.g., “We’re calling to confirm your appointment with Dr. Smith on …”), the law prohibits soliciting a purchase or donation, or any modification of a purchase, etc. as part of an “informational” call. Examples given by the FTC are:

• availability of any product or service, whether or not the message provides a means for purchasing it
• availability of additional options or upgrades for a previous purchase
• availability of alternative terms or conditions for a previous purchase
• availability of an extended warranty (or service contract) on a previous purchase

Is it a sweepstakes? If a prize is involved, the caller must state the odds of winning, mention that no purchase is necessary, and tell how to get instructions for entering without buying anything (among other possible requirements and restrictions).

What’s the goal of the script? The typical illegal robocall is just the start of nefarious activity. The objective is to connect the recipient to a live person, located who-knows-where in the world, who then may try to get personal information that will be used for illegal activity, or some other scam. This leads us to another key question…

What’s talent’s liability? Are you liable, as talent who voices what might be an illegal script or a script illegally used? Interesting question. Violators of the Telemarketing Sales Rule are subject to civil penalties of up to $16,000 per violation. To date (2015), the FTC has been awarded more than $1 billion in judgments against companies violating the rules. (However, it seems the FTC has actually received only $100 million of this. The FTC has civil law enforcement authority, not criminal). Fines or judgments under the FTC and FCC can be $500 per violation (with several violations possible for each call). That’s typically directed at the marketer, but we note this statement at FTC.gov:

Third parties who do business with sellers and telemarketers should be aware that their dealings may provide a factual basis to support an inference that they know — or deliberately remain ignorant of — the Rule violations of these sellers and telemarketers. For example, a third party who provides sellers or telemarketers with mailing lists, help in creating sales scripts or direct mail pieces, or any other substantial assistance while knowing or deliberately avoiding knowing that the seller or telemarketer is engaged in a Rule violation may be violating the Rule.

We can’t say how much risk an unwitting voice actor is in. So far, the FTC has not prosecuted or sued voice talent heard in illegal robocalls. As for other authorities, we don’t know.

But if the client says something like, “This script will be played anonymously for tens of thousands of consumers who we’ll call at random,” it might be wise to turn down the job.

What if you innocently record what you think is a website video and you later learn it’s being used for spamcalls?

Interesting question.

Some talent routinely include restrictions in their job proposal or work agreement.

In Edge Studio’s major webinar on online casting, J. Michael Collins mentioned that he typically includes the following in his proposal:

“Acceptance of this proposal constitutes agreement that usage of any recordings is limited to the mediums and terms posted in the original job description by the voice seeker.”

Talent might also include something like the following, which we’ve excerpted from a sample contract in the book Voice Over Legal, by attorney, voice actor and Edge Studio coach Rob Sciglimpaglia Jr.:

“Client agrees to hold Talent harmless for any and all claims made against Talent arising out of this project, including payment of Talent’s reasonable attorney’s fees and Court costs.”

(The above is not the book’s complete language, so you may want to refer to the book, or Rob, or your own contract expert.)

As talent, except as noted above, you might not need to be so concerned about your own legal liability. The bigger concern might be your reputation, if a widespread annoyance call becomes recognized as you.

And as we said, many kinds of legitimate, helpful robocalls are routinely recorded all the time. No problem with those.

But some talent already avoid certain types of product pitches (for example, tobacco, politics, or adult content). Similarly, if you encounter a questionable telemarketing script, check it out. You might consider putting it on your Do-Not-Record list.

POSTSCRIPT:

If you receive an illegal pre-recorded robocall:

• Hang up. Out of professional curiosity, you might be tempted to listen silently to the read, but the perpetrator might see you as a potential soft touch and call again.
• Don’t respond in any way. Don’t “press a number” to get off the list. Don’t call back. That just confirms your number is valid.
• Ask your phone service provider to block the number. You might be able to do it yourself online. Unfortunately, some providers limit you to a very small quantity of numbers you can block. It seems they don’t themselves block any calls from IDs known to be spammers. Also, Caller ID data can easily be forged and is frequently changed, so paying for this service might not make sense.
• Report illegal calls to the Federal Trade Commission. Go to ftc.gov/robocalls or phone 1-877-382-4357. For other complaints, go
  www.ftc.gov/complaint. To get on the Do Not Call list, go to www.donotcall.gov.
• Calls to a mobile number are even more restricted. But you might be able to block the worst of them – and/or possibly calls to your home phone — by using an app or service for that purpose, depending on what type of phone service you have. One such service is NoMoRobo.com, which emerged from a contest run by the FTC and is free to consumers. There may be others of that type. We’ve found NoMoRobo to be well reviewed, and one of our people uses it with noticeable success. As the technique involves their first receiving your calls for the first ring or so, you should verify for yourself whether or not their security and privacy standards match your own.
• As voice talent, you might want to put your phone number on your website. But otherwise, don’t give your phone number or other personal data to just anyone. Common ploys to get your number (and/or email) and spread it around are sweepstakes offers, credit card debt questionnaires, and auto insurance “broker” sites.
• If you’re running your VO business from your personal home phone number, is it still illegal to call you? Sometimes. An FTC spokesman told us:If the call to the [personal] phone number is a business call (pitching a good or service to the business), then it is exempt from the FTC’s telemarketing rules. If, however, the purpose of the call is sell a [unrelated] good or service, then it is not exempt and is subject to our Do Not Call and Robocall Rules. So, a robocall to the number to sell a vacation or home security system would be illegal because that is not a business call. [It] does not matter whether the phone is also used by the owner as a business line.