In the last several months, nearly every aspect of the economy has experienced significant upheaval. The marketing industry has been no exception. Recent developments have led to substantial changes to what is considered Telephone Consumer Protection Act (“TCPA”) compliance. As a result, it is important to take stock of certain elemental TCPA guidance tips to stay up to date with the present state of the law.
What is the current TCPA guidance based on recent legal developments?
[Read More]Although the California Consumer Privacy Act (“CCPA”) went into effect on January 1, 2020, the California Attorney General (“AG”) was prohibited from bringing enforcement actions until July 1, 2020. Due to the COVID-19 pandemic, some observers were unsure whether the AG would be able to meet the July 1st deadline. However, the AG is moving full speed ahead and has even denied businesses’ requests to delay the CCPA enforcement date due to COVID-19. Now, the AG has commenced enforcement action as planned, and businesses have already started to receive CCPA violation notices.
What should you do if you receive a CCPA violation notice?
[Read More]Businesses often use games of chance to promote products, increase traffic to their websites, and increase revenues. When set up correctly, games of chance can be a boon for business. However, when fashioned incorrectly, the consequences include reputational harm, civil litigation and even criminal liability. Games of skill (as opposed to chance) are regulated at both the state and federal level. Each state evaluates games of skill by using either: 1) the dominant factor test; 2) the material element test; or 3) the any chance test. A sweepstakes lawyer can help analyze the risk associated with promoting games of chance and skill based on the various jurisdictional tests.
How do states evaluate games of skill?
[Read More]The COVID-19 health crisis has highlighted just how vital Personal Protective Equipment (“PPE”) is for healthcare workers and citizens during a pandemic. Due to skyrocketing demand in recent months, shortages of PPE have led to a mini-boom industry for suppliers and buyers alike. Despite the growth in this sector, PPE commercial transactions do involve significant risk and, consequently, many complex legal issues need to be directly addressed in a PPE contract.
Given the increase in PPE transactions, and the associated legal exposure involved for the contracting parties, it is extremely important to retain attorneys who have experience in guiding clients through the various stages of drafting and negotiation of PPE contracts.
PPE Contracts: What Are the Necessary Terms and Conditions?
[Read More]Because of the growing ability – and need – to reach consumers through telemarketing technology, businesses (and their call centers) also face the growing risk of contacting consumers without TCPA consent.
Call centers run more efficiently than ever before, reaching consumers through telemarketing campaigns that include live and automated dialing, voicemail drops, texting, and video calls.
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.
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 certain 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, for example, 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.
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:
Consent agreements can be collected online or in person. Electronic or digital forms of signature are acceptable from consumers, including agreements through email, website form, text message, telephone keypress, and voice recording.
| Your education on compliance with Internet, telemarketing, and trademark law should begin with a discussion between you and an experienced attorney. Scheduling a free consultation with Klein Moynihan Turco is a great place to start. |
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:
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.
The DNC regulations do not apply to advertisers in the following situations:
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 (646) 713-1684.
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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TCPA Restrictions on Robocalls Expanded by SCOTUS
The COVID-19 pandemic has drastically transformed the operations of many businesses and some have responded by altering their ordinary production operations to fill the demand for personal protective equipment (“PPE”). As a result, the United States Patent and Trademark Organization (“USPTO”) has seen an increase in trademark applications for COVID-19-related medical goods and services. In response, the USPTO has made it possible for applicants to expedite the agency examination period by up to two (2) months. Businesses that qualify for prioritized examination of their PPE trademark should act to take the necessary steps to secure federal protection.
Who is eligible for prioritized examination?
[Read More]Last week, the United States Supreme Court (“SCOTUS”) issued a ruling examining the Telephone Consumer Protection Act (“TCPA”) exception for robocalls made to collect government debt. The far-reaching effect of the ruling will be to expand the law’s restrictions on robocalls.
What are the implications of the SCOTUS ruling on robocalls?
[Read More]On June 30, 2020, Judge John Sinatra of the United States District Court for the Western District of New York (the “Court”), in Gerrard v. Acara Solutions Inc. (18-cv-1041-JLS-LFG), held that certain text messages alerting plaintiff to a potential employment opportunity were not advertisements and, therefore, did not violate the Telephone Consumer Privacy Act (“TCPA”) or its associated regulations. Ms. Samantha Gerrard (“Plaintiff”) commenced a putative class action lawsuit following the receipt of hundreds of text messages allegedly sent by Acara Solutions, Inc. (“Defendant”). Defendant moved to dismiss the lawsuit for failure to state a claim under the TCPA. Although the United States Magistrate Judge recommended denying Defendant’s motion to dismiss, the Court disagreed, and instead dismissed plaintiff’s TCPA lawsuit in its entirety.
What were the facts of the case?
[Read More]
