Call recording regulations are complicated, and the penalties for infringement can be costly, so it’s critical for companies that rely on phones for business to know their legal rights and obligations when it comes to recording calls.
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Call recording regulations are complicated, and the penalties for infringement can be costly, so it’s critical for companies that rely on phones for business to know their legal rights and obligations when it comes to recording calls. Adding to the complication is the fact that federal and state governments and the FCC all have different rules and regulations to determine what makes a call recording legal. However, one thing is clear, the deciding factor for all three organizations in determining whether a call recording is legal can be summed up in one word — consent.
Who’s in Charge Here?
Understanding Call Recording Jurisdictions
Because there are three organizations (the feds, the state and the FCC) that enforce call recording laws in the U.S., it’s important to understand the jurisdictions of each:
Federal Government — does not have many laws governing call record¬ing, but does require one-party consent.
State Governments — have well-defined call recording laws and penalties, and 13 states require all-party consent.
The FCC - requires all parties in a recorded interstate call be notified either verbally or through a beep heard intermittently throughout the recording. Lawsuits involving interstate phone calls have been judged in BOTH the originating state and in the receiving state, so it’s best to abide by the stricter state guidelines when recording interstate calls.
International call recording regulations vary widely, so be sure to consult the local government’s telecommunications authority before recording calls. Many countries don’t have specific laws regarding call recording, and operate on a case-by-case basis. And in some countries, corporate literature that declares the company records calls is considered consent.
Are Your Calls One Party or All-Party?
State Consent Rules
All states have their own laws regarding call recording. In most states one person on the call has to provide consent to the recording; however, 12 states require all parties on the call to give consent prior to recording. Sometimes all-party consent is given the misnomer of “two-party consent,” but if there are more than two people on the line, ALL must consent to the taping.
One-Party Consent — At least one person in the conversation knows the call is being recorded—even if that person is the one conducting the recording. Thirty-eight states and Washington D.C. allow you to record calls you are on without informing the other parties you are doing so.
All-Party Consent — Everyone in the conversation is told the call is being recorded either verbally or with an intermittent beep. If two people are talking and a third person joins the call, the third person must be notified the call is being recorded.
What happens when a one-party state calls an all-party state?
All state-to-state calls are subject to federal laws, so in this case it’s best to compare federal laws with laws for both states and abide by whatever is strictest.
Is That Legal?
TRUE OR FALSE
Federal courts say it’s okay to disclose the contents of an illegally intercepted call or communication.
False: The federal government and most states declare this activity illegal.
It’s okay to perform a hidden recording in a private place.
False: Use of hidden recorders violates wiretap and eavesdropping laws and could bring a civil lawsuit for invasion of privacy.
It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view.
True: The consent of all parties is presumed in these instances.
What’s the Trouble?
Understanding the Limits of Consent
In general, you may record, film, broadcast or amplify any conversation where everyone involved has given consent. However, if you’re thinking about taping a conversation, it’s imperative you make certain that ALL consent requirements for BOTH state and federal laws have been met. Three examples of when it’s smartest NOT to record include:
Criminal Purpose — Of course we know you never would, BUT recording a conversation in furtherance of a crime is illegal.
Trespass — A person whose conversation is secretly recorded can sue for trespass and intrusion.
Expectations of Privacy — Be careful how you use taped conversations because a person can sue if they have a reasonable expectation of privacy with regards to the use of the taped conversation. For example, you told someone their call could be used for training purposes, but instead, you used it in a national marketing campaign.
Is That a Yes or a No?
Obtaining Caller Consent
There are many different ways to obtain consent from callers in order to record a call, but the two most common are: pre-recorded messages and beep tones.
Pre-Recorded Messages — Most companies inform callers their calls may be “monitored or recorded” via a pre-recorded message at the beginning of the call. This technique is best used before the caller is connected to a live agent.
Beep Tones — These are specific beeps that are heard for the duration of the call and must be within 1260–1540 Hertz, and last .17-.25 seconds. The beeps must go off every 15 seconds for the entirety of the call.
Recording Outbound Calls
There are basically two ways to obtain consent for outbound calls, pre-recorded messages and announcements; however, neither of these solutions is without issue. Outbound pre-recorded messages warning, “This call will be recorded,” often lead to people disconnecting before the call con¬nects. And announcing the recording at the beginning of the call proves problematic when a phone switches hands mid-call. To comply with laws, the next agent must re-announce it’s a recorded line since every person on the phone must be informed of the recording. In short, if you do not want to open your call with a recorded notification, it’s best not to record outbound calls to all-party states.
Should I Be Recording This?
Knowing When It’s Best to Record
There are several situations where a recorded call could mean the difference between victory and defeat in a court of law. To protect your company from false claims, it’s important to understand the times when you absolutely must record calls.
Insurance Claims and Healthcare — Conversations about insurance claims should be recorded to provide clear evidence of what is agreed to and discussed in a claim. This eliminates he-said-she-said disputes and holds both parties to the facts of the discussion. In these situations, a recorded call not only protects your company, it can save you money in the case of untrue claims.
Phone-Based Employees — Recorded calls are often used to train phone-based employees; however, these same recordings have the potential to resolve customer disputes and save the company money by preserving customer relationships.
Billing Support — When goods or services are purchased by phone, the law requires that all disclaimers, terms and conditions of the purchase be clearly explained to the buyer. A recording not only proves that all disclaimers, terms and conditions were clearly explained, but can be used as proof that the agent followed the company processes.
Complying with Industry Regulations — While many industry regulations do not require calls to be recorded, a recorded call can be used to settle a claim against a company’s behavior, proving compliance with regulations, and reducing liability and exposure.
What Is TSR?
Telemarketing Sales Rule
The Telemarketing Sales Rule (TSR) applies to any plan, program, or campaign to sell goods or services, or obtain a charitable contribution through interstate phone calls.
Designed to prevent fraud, the rule requires telemarketers to make certain disclosures and gives state law officers the authority to prosecute fraudulent telemarketers. It also helps consumers stop unwanted calls by instructing them to tell telemarketers to, “Put me on your DO-NOT-CALL list.”
The rule applies whether or not the telemarketer:
Initiates or receives calls to or from consumers
Makes or receives calls using low- or high-tech equipment, (like automated systems)
Makes calls from outside the U.S. to consumers in America
Any company that conducts business over the phone can be subject to the TSR Rule even if the call is:
An unsolicited call from a consumer
A response to a general media advertisement or direct mail solicitation
An outbound non-sales call such as a customer service call
An upsell following an initial transaction
TSR Is Serious Business
TSR is a far-reaching and broadly interpreted law that’s heavily enforced by the FTC, so if you find yourself in a situation where you aren’t sure whether or not you need to comply, it’s smartest just to comply because not complying can be costly. Some examples of times you should comply are:
Shipping — When you take orders by phone, you may choose to provide prospective customers with updated shipment information. This may differ from what you said or implied about the shipment time in your advertising. While the updated shipment information you provide on the phone supersedes any shipment representation you made in the advertising, you must have a reasonable basis for the updated shipment information.
Upselling — A consumer calls a store to inquire about the price of an oven. Because the call is not the result of a solicitation by the seller, the initial inquiry is exempt from TSR. However, if the seller tries to upsell a refrigerator during the same call, the upsell transaction is subject to TSR.
Play It Smart
Mitel Knows Best
We hope our eBook on call recording has helped you better understand where your rights and the rules converge. To learn more about Mitel Sky and download other related eBooks, white papers, and view product demos, please visit http://www.shoretelsky.com/resources.
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