Because of the growing ability – and need – to reach consumers through telemarketing technology, businesses (and their call centers) face the growing risk of contacting consumers without proper TCPA consent.
The Telephone Consumer Protection Act (TCPA) protects consumers against the receipt of certain unsolicited telemarketing calls, faxes, pre-recorded calls, auto-dialed calls, and text messaging. Businesses that violate TCPA regulations may face lawsuits from consumers. These can get extremely expensive in the case of class actions, which often involve multiple violations against thousands of consumers.
To help businesses understand how to advertise to consumers while complying with the TCPA, we have provided this telemarketer’s guide to TCPA consent.
Introduction to TCPA Consent
As we have previously detailed, under the TCPA, consumer consent must be obtained by businesses that wish to make robocalls and send text messages to consumers. The consumer’s consent to receive such solicitations must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls/text messages that deliver autodialed and/or pre-recorded telemarketing messages; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached.
What the TCPA Requires Telemarketers to Disclose
Beyond focusing on promoting a product or service, under the TCPA, advertisers must approach and communicate with consumers respectfully and within the law.
The Telemarketing Sales Rule requires that advertisers provide specific information, using certain procedures, before a consumer pays for the goods or services involved in a sales offer, for calls both to and from consumers.
At a minimum, each telemarketer must provide his or her name, as well as the corporate or registered name of the organization that they are contacting consumers on behalf of. Telemarketing calls can only be made between 8 a.m. and 9 p.m. (based on the local time of the recipient), with additional day and time restrictions in various states.
In several states, it is necessary to end contact if a consumer states that he/she is not interested in a product or service that the telemarketer is promoting. This is called the “no rebuttal rule.” Once told to stop, the telemarketer cannot continue to try to convince the consumer to purchase the given product or service at issue. Other states permit one rebuttal before the telemarketer needs to end contact.
If a business records its telemarketing calls, which is recommended, there must be clear notice given to the consumer at the beginning of each call that it will be recorded for quality assurance purposes and that the recording will be maintained as a record of the transaction.
For pre-recorded messages, the advertiser must provide the telephone number for the business, which should be a toll-free number. In addition, pre-recorded calls must also include an automated, interactive opt-out mechanism for the consumer to make a do-not-call request.
The importance of express consent under the TCPA
Before even contacting consumers, you will need their express consent to do so.
Prior express written consent from each consumer is required under the TCPA for telemarketers to solicit consumers via autodialed and/or pre-recorded calls and text messages to cell phones (and for pre-recorded and artificial voice calls to residential land lines) for marketing purposes.
Getting express consent involves providing consumers with a clear, unambiguous disclosure that states that:
- They will receive future calls that deliver autodialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser.
- Their consent is not a condition of purchase.
- They must designate a phone number at which to be reached, which should not be pre-populated by the advertiser in an online form, for example.
Compliance with the E-SIGN Act satisfies the signature requirement, meaning that electronic or digital forms of signature are acceptable (i.e., agreements obtained via email, website form, text message, telephone key press or voice recording).
Evidence of Internet-provided written consent includes, but is not limited to, website pages that contain consumer consent language and fields, associated screenshots of the consent webpage as seen by the consumer where the phone number was inputted, complete data records submitted by the consumer (with time and date stamp), together with the applicable consumer IP address.
Communications exempt from consent requirements
Purely informational calls and contact for non-commercial purposes are exempt from some of the TCPA’s regulations. This includes contact from a consumer’s cellular carrier, school, healthcare provider, and for emergency purposes.
There are specific exemptions for each medium of telephone communication as defined by the TCPA, including:
Calls
- That are manually dialed by a live person and do not include pre-recorded messages.
- Made by or on behalf of a tax-exempt nonprofit organization.
Texts
- That are manually composed and sent.
- For appointment reminders or prescription status.
- Sent by package delivery services.
What is the DNC List and how does it relate to the TCPA?
The National Do Not Call (DNC) Registry takes consumer rights a step further. Through the DNC registry, telemarketers can access a list of phone numbers belonging to consumers who wish to actively limit the telemarketing calls that they receive.
Violations of DNC regulations
- Placing a telemarketing call to a person whose number is on the DNC registry, unless the caller qualifies for one or more of the exemptions explained below.
- Interfering with a person’s right to be placed on the registry.
- Using the registry for any purpose other than complying with applicable regulations.
DNC exemptions
The DNC regulations do not apply to advertisers in the following situations:
- If they have express written consent to call the consumer.
- If they have an established business relationship with the customer (as long as the consumer has not asked to be placed on the seller’s internal DNC list), if the customer has done one of the following:
- Purchased, rented or leased the seller’s goods or services, within the 18 months prior to the telemarketing contact.
- Inquired about or applied for the seller’s goods or services within the 3 months prior to the telemarketing contact.
- The advertiser is covered under the DNC “safe harbor.” The safe harbor covers situations where a consumer was mistakenly called and this violation is excused where the advertiser has implemented all of the following as part of its routine business practices:
- Establishing, implementing, and enforcing written internal DNC procedures.
- Maintaining an internal DNC list.
- Training its personnel and affiliates in these procedures.
- Synchronizing its call lists with an updated version of the National DNC Registry every 31 days.
TCPA Penalties
The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/text message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.
Considering that telemarketing and text message campaigns often involve thousands and, in some cases, millions, of calls/text messages, potential penalties sought under the TCPA may escalate very quickly. Moreover, companies that fail to comply with the TCPA may find themselves facing consumer class action litigation.
How to Protect Your Business
If a dispute concerning consent arises, the marketer bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive robocalls or text messages to the number he/she specifically provided.
It is a best practice for marketers to get in the practice of collecting written consent from consumers as soon as possible. Not only will businesses be required to do so beginning in October, but having written consent provides a tangible and strong defense that adequate consumer consent was obtained. Furthermore, it is recommended that records of each consumer’s consent be maintained for at least four (4) years, which is the default federal statute of limitations to bring an action under the TCPA.
Learn more about TCPA consent
This guide is meant to provide a general overview of when TCPA consent is required. Please review your specific situation with your legal counsel.
If you would like to learn more about the TCPA and how to comply with TCPA regulations, we can help. Please contact us at info@kleinmoynihan.com or (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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This guide was originally published on July 15, 2020, and updated on August 5, 2021.
