Looking back 2014 was a year of increased government scrutiny and compliance obligations for lead generators and online marketers, and so, for 2015, advertisers will need to ramp up compliance. Avoiding banned terms, better use of disclosures, and other web and contact center compliance enhancements – with at least some reports of 66% of website URLs containing a potential compliance violation – should be a priority for the New Year.
At least, that’s what marketing compliance company PerformLine revealed last week in its infographic titled “Compliance Trends to Watch Out for in 2015.” The infographic is part of its periodic overview of its research on websites and “contact centers” using “banned” compliance terms or missing “required” disclosures. The infographic shows that 66% of credit monitoring sites, 72% of credit card sites, and 91% of finance sites contain potential compliance violations. The company didn’t release more detailed breakdowns, but it did pinpoint certain keywords and disclosures as areas of concern.
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One area that caught our attention was the identified a lack of required disclosures as one of its “Five Issues Causing Potential Violations.” As we have written previously, the Federal Trade Commission (FTC) has placed renewed emphasis on clear disclosures in its Dot.com Disclosures Guides, and marketers’ ability to use fine print disclosures may be going the way of the dodo. However, with high rates of non-compliance across all industries measured, it appears marketers may still be struggling with how to create clear and conspicuous online disclosures without detracting from the marketing message.
PerformLine also indicated that 43% of the websites it reviewed failed to satisfy the Federal Communications Commission’s (FCC) rules under the Telephone Consumer Protection Act (TCPA). Specifically, the TCPA requires any entity that calls (or texts) consumers for marketing purposes to obtain express written consent from the consumer to make the call. Although marketers can obtain this consent through websites, call centers, or other media, the rules set forth specific guidelines that must be met for consent to be considered sufficient.
While some of these numbers seem high and may represent spikes, they are just as striking as the statistics we highlighted in September from LeadsCon 2014. At that time, about 80% of potential web pages contained compliance violations and 43% of websites still did not comply with the new TCPA rules.
So what does this all mean? Whether it’s from quantitative data or anecdotal comments from regulators, the perception is that many online marketers as a whole still have a long way to go to meet compliance expectations. Lead generators and online marketers should be aware that with the large number of potential violations, regulatory enforcement could come from multiple agencies. As a recent New York Times article noted, the FTC, FCC, and the Consumer Financial Protection Bureau (CFPB) see their “mandates as covering much of the same enforcement territory.” Add state Attorneys General and private plaintiffs to the list, along with financial service regulators (when applicable), and service provider compliance questionnaires, and there’s no shortage of potential sources of attention.
The CFPB seems particularly committed to taking a broad view of what is an unfair, deceptive, or abusive act or practice and has been aggressive in pursuing enforcement actions, even in scenarios involving companies that wouldn’t have historically been considered financial service providers. Further, a non-compliant website (or end buyer, in a lead generation scenario) runs a greater risk now than ever of coming to CFPB’s attention with its fully operational site of the CFPB’s complaint portal.
Although the TCPA may not be the chief legal concern on marketers’ minds when designing websites, the data show the importance of establishing proper mechanisms to obtain valid consent if telemarketing calls will be made to consumers. The TCPA is a topic this blog site has covered frequently as it is a gold mine for plaintiff’s attorneys and a hotbed of FCC action, so attention to website design at the front-end can go a long way towards preventing future headaches (and frequent litigation).
As the New Year approaches, this data serve as yet another reminder that online advertising and marketing is a high stakes game, and if you aren’t already reviewing your online content for regulatory disclosures and compliance, and you don’t have an overall advertising review policy and compliance plan in place, now is the time to do so.