“This call may be recorded for quality and training purposes.”
The phone rings. You pick up the receiver, say "hello," and hear the words above. You know the proverbial poop is about to strike the air currents, and although you have taken the time and effort to include your number on the dubious "No Call List," you realize the next words you hear are likely to be the canned language of a pesky telemarketer. But, in good faith, you hang on the line and discover someone, Lord knows where, in some accent that makes intelligent conversation impossible, has the dire need to communicate "important information" with you in a veiled monologue sans any discernible lucid content.
People say don't even answer these calls, or just hang up without any conversation. But, I admit that I'm a sucker and a curious individual about any call I receive at my residence. So, feeling as if I am under some kind of suspicion or fearing that I may be responsible for something... anything... I talk and try to determine why the party on the other end of the line is calling ME and recording ME.
Of course, the entire exercise is based on futility and doomed for failure. But, it can be very entertaining if you have the time to waste.
The Legality of Recording Phone Conversations
Generally, it is legal to record any conversation where all the parties to it consent (one party consent if all parties are in a state with corresponding law). The U.S. federal law only requires one-party consent to the recording of a telephone conversation, but explicitly does not protect the taping if it is done for a criminal or tortuous purpose. Many states have similar exceptions.
The following phrases may be used to request person's consent:
* Agent Training: It is often helpful to have the person answering your telephone calls hear their own voice and listen to how callers hear them. This will help them improve their call etiquette.
* Quality Assurance: Call handling can be monitored on a monthly or bi-monthly basis to see where improvements are needed.
* Quality Control: Call confirmation and "he said/she said" disputes.
* Security/Liability: A recording of a conversation can be priceless if your business were to ever end up in court. Being accountable to your clients can help your business earn the respect of your customers.
If there is not informed consent, someone may be breaking a state law by recording a call to or from a person in that state. Other regulations, such as the compliance standards set by the Payment Card Industry (PCI) Security Standards Council, have restrictions on the storage of and access to data that contains payment card account information.
Recorded calls and computer screens can contain credit card numbers and other sensitive data, and the recordings may be subject to the same security standards as other information systems.
The jury is still out on the full impact these regulations have on call recording applications.
("This Call May Be Recorded." CallCopy Inc. 2010)
Reasons For Legal Recording
While many industry regulations, such as the Fair Debt Collection Practices Act (FDCPA), do not explicitly require that calls be recorded, a recorded call may be used to settle a claim against a company’s behavior in relation to the act. While the perceived need for this recording is subjective, the benefit from being able to effectively resolve or settle this type of dispute is clear.
Recorded calls can also be used to resolve disputes related to insurance claims, where a recording of the primary claim is leveraged to validate what coverage was granted or denied based on the information provided by the caller at the time of the claim. An insurance company may have its own policies regarding the need for recording and acceptable use of recorded calls.
The call may be monitored or recorded for quality and training purposes. Using pre-recorded calls in the training room is preferred over live monitoring. With recorded calls, you are able to ensure that the content of the call is appropriate for where you are in your training curriculum. By doing this type of observation in the training room and not on the live call floor you are able to provide a more consistent learning experience. Because all agents are learning from the same calls and the same agents, you eliminate the randomization and the wild cards inherent in live monitoring.
Many industries have federal and other regulations that make call recording a necessity. Financial
institutions need records of all customer transactions, including telephone calls. Retailers,
telecommunications companies, catalog houses, and ecommerce businesses need to record sales
Although commonly referred to as “two-party," the states below actually require that all parties on a
call consent to recording. There are 12 two-party states in the United States: California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington.
Questions sometimes arise when a person in a one-party state calls a person in a two-party state. For example, a call center agent on Ohio, a one-party state, calls a person in neighboring Pennsylvania, a two-party state. If the recording takes place in Ohio, is it under Ohio’s laws and jurisdiction, or do Pennsylvania’s laws apply to its citizen?
If you must record the call for compliance or regulatory requirements, you may be at risk with federal legislation if you do not record the call.
Generally speaking, intrastate calls (calls within a single state) fall under the jurisdiction of that state. All interstate calls (state-to-state calls) are subject to federal law. However, most federal laws do not
supersede state law if the state law is more restrictive. Because of the rock, paper, scissors question, it is best to evaluate the laws of both states, as well as federal laws when recording interstate calls.
My Home State: Ohio Wiretapping Law
Ohio's wiretapping law is a "one-party consent" law. Ohio law makes it a crime to intercept or record any "wire, oral, or electronic communication" unless one party to the conversation consents. Ohio Rev. Code § 2933.52. Thus, if you operate in Ohio, you may record a conversation or phone call if you are a party to the conversation or you get permission from one party to the conversation in advance. That said, if you intend to record conversations involving people located in more than one state, you should play it safe and get the consent of all parties.
Additionally, consent is not required for oral communications (e.g., in-person conversations) where the speakers does not have a reasonable expectation of privacy in the communication. See Ohio Rev. Code § 2933.51. This means that you are free to record a conversation happening between two people in a public place such as a street or a restaurant, so long as you are not using sensitive recording equipment to pick up what you otherwise would not hear.
In addition to subjecting you to criminal prosecution, violating the Ohio wiretapping law can expose you to a civil lawsuit for damages by an injured party.
Telemarketers and Telefunders
The Federal Trade Commission (FTC) issued the amended Telemarketing Sales Rule (TSR) on January 29, 2003. This legislation gives the FTC and state attorneys general law enforcement tools to combat telemarketing fraud, give consumers added privacy protections and defenses against unscrupulous telemarketers, and help consumers tell the difference between fraudulent and legitimate telemarketing.
The TSR requires sellers and telemarketers to clearly provide certain information before the consumer pays for the goods or services, allowing them to make an informed purchase decision. Sellers and telemarketers may provide the information either orally or in writing. Recorded verification is often the preferred method, as it enables the seller to close the sale on the spot.
The following information must be disclosed: cost and quantity; material restrictions, limitations, or conditions; no-refund policy; prize promotions; credit card loss protection; and negative option features.
Telefunders must make two disclosures promptly, clearly and conspicuously: the identity of the charitable organization on whose behalf the solicitation is being made. That the purpose of the call is to solicit a charitable contribution.
The TSR prohibits sellers and telemarketers from making false or misleading statements to induce anyone to pay for goods or services or make a charitable contribution.
Telephone Consumer Protection Act (TCPA)
The Telephone Consumer Protection Act (TCPA), passed in 1991, regulates general consumer contact, most notably “Do Not Call” requirements. The TCPA does include provisions regarding the use of pre-recorded messages in outbound calling, but this is different than the recording of a phone call.
From a telemarketer's perspective, the most significant part of the TCPA regulations concern
commercial solicitation calls made to residences. Those making the calls are required to:
* Limit the calls to the period between 8 A.M. and 9 P.M;
* Maintain a "do not call list" and honor any request to not be called again;
* Have a clearly written policy, available to anyone upon request;
* Have a clearly defined training program for their personnel making the telephone solicitations.
* In the case of a contracted company, forward all "do not call” requests to the company on whose behalf they are calling. It is that company that is legally liable under the TCPA, not the contractor.
There are some exceptions. A call is exempt from the TCPA if it:
* Is made on behalf of a non-profit organization;
* Is not made for a commercial purpose;
* Does not include an unsolicited advertisement; or
* Is made to a consumer with whom there is an established business relationship.
The TCPA regulations apply to common carriers as well as to other marketers.
If you're like me, the answer is "hell, no." Many people have the right to record my conversation; some for good reason. But, I don't like it. I marvel that the insidious insistence on recording such simple conversations even exists. Most of the time, I try to give the other party their "money's worth" by stringing them along as they waste my time. I realize I do have the luxury of wasting their time too since I am retired and cantankerous. Why make it easy for people I don't know and can't understand to intrude on me?
Politicians want me to be a part of an online meeting. Telemarketers offer me prizes and offers I simply "can't refuse." Telefunders want me to support police organizations and charities I have never heard of or never funded. Then, there are the recorded "mystery" calls that attempt to pass me to some other living soul to sell me something I don't want or need.
And, all of these voices want to record ME. I usually give them a good show. I ask where they are, who they are, what kind of day it is wherever they are. I tell them that we fellas down in the holler seldom get to speak to another human voice, especially one with a feminine tone. I quiz them on every aspect of their purpose and keep them on the line for as long as possible. I make pleasantries and insist on getting to know more about any trivial matters. I often ask to speak to supervisors and bosses for "inside" information. In short, I attempt to make MY RECORDINGS as entertaining as possible for "training, quality assurance, and security purposes."
I'm on the "No Call List" and tell them so, but still I get phone calls. No one can seem to figure out how they received my number, and we talk about that mystery at length with no explanations. I even take the time to tell them about the toll old age is beginning to take on me -- my failing memory, my health problems, my dogs, my last good meal, my failing hearing, my goals as a senior citizen. And guess what? Most of the time the callers do not seem too interested in my personal matters although they called me on my personal home phone line.
I have a suggestion for you the next time you hear the following:
“This call may be recorded for quality and training purposes.”
Have some fun with the call. And then see if the party that phoned will send you a recording of your recording. That way you can keep a log of invaluable conversations you may be able to compile into a comedy CD and sell to the public. I think some of the recordings could be potential hits.
One of my best performances occurred when I received a call stating I had "won" a three-day stay in Gatlinburg because I had once checked into a hotel in South Carolina. (The stipulation: all I had to do was attend a seminar on buying property there.) The girl on the line told me that she had gleaned the information from the participating hotel, and my stay there made me eligible for the "free" vacation.
Infuriated, I told her my cheating wife had been there unbeknownst to me with her sleezy boyfriend, and then I said "thanks for letting me know because I was going to throttle her." Of course, it was a little lie on my part (My wife and I had stayed in South Carolina together), but you should have heard the caller trying to calm me down and saying she wished she had never called my residence. "Now, Mr. Thompson... I'm sorry I told you this... don't get rash... oh, my goodness. Don't hurt your wife."
I calmed down and asked her since I had won the Gatlinburg vacation and was likely to be single because my wife had cheated if she would like to take the trip with me. She stuttered and, of course, declined. But then, I couldn't hold my laughter any longer and began telling her the truth. She was quite relieved to say the least.
If you use your imagination, you too can have some great recorded moments to cherish forever. And, I bet those training meetings would also benefit from some good comic relief.