Businesses conducting outbound marketing through use of text messages, phone calls, voicemail drops, and fax advertisements must regularly evaluate whether their telemarketing practices comply with applicable law. Should a business run afoul of telemarketing regulations, the expenses can add up quickly, with penalties of $500 per call/text and up to $1,500 per call/text for willful and knowing violations of the Telephone Consumer Protection Act (“TCPA”.)
TCPA opinion letters are required in certain transactions and serve as a good barometer for understanding where a business stands with respect to the law, which can save time, money and headaches in the long run. As part of the process in preparing a TCPA opinion letter, attorneys must review various telemarketing practices, policies, procedures and agreements to assess compliance with the TCPA and the Amended Telemarketing Sales Rule (“ATSR”), among other regulations.
If you are unsure as to whether your business needs a TCPA opinion letter (Read: if you need examples of businesses that found themselves in hot water for telemarketing violations), feel free to explore the following lawsuits that we have recently blogged about:
Prepare for a Telemarketing Practice Compliance Assessment
An experienced telemarketing attorney should first conduct a thorough telemarketing practice assessment to determine eligibility for the opinion letter. Often this includes, among other things:
- Reviewing agreements with lead generation partners;
- Analysis of applicable website privacy policies and corresponding TCPA consent language;
- Evaluation of Do-Not-Call policies; and
- Review and revision of telemarketing scripts.
Lead generation agreements should require marketing partners to represent and warrant that, in connection with generating leads, they will comply with all applicable state and federal laws including, but not limited to, the TCPA and ATSR. Lead generators should represent and warrant that all telemarketing leads that they submit to the lead buyer come from consumers that have provided their “prior express written consent” to receive automated commercial telephone calls from lead buyer.
The lead generators’ privacy policies should also include specific language that authorizes calling through automated means. Records of TCPA consent should be retained for five (5) years.
In addition, telemarketing scripts should contain specific directions for all telemarketing agents to: (1) disclose that calls will be recorded; (2) proceed to the courtesy close where consumers indicate that they are not interested in the subject offer; (3) observe state no-rebuttal rules in certain jurisdictions; and (4) obtain consent from consumers prior to transferring calls to third-party partners (where applicable.)
Telemarketing Practices that TCPA Opinion Letters Address
Telemarketing calls are those that advertise the commercial availability, and/or encourage the purchase, of goods or services. Companies that make or initiate autodialed telemarketing calls to consumers must first obtain each consumer’s prior express consent to receive such calls.
Prior to calling consumers, telemarketers must scrub all numbers against the Federal Do-Not-Call list. However, telemarketers may call anyone from/with whom such telemarketers have obtained consent to call, or an established business relationship – even if the consumer’s telephone number is on the Federal Do-Not-Call list.
There are also caller identification requirements that must be complied with, i.e., telemarketers cannot block or transmit misleading caller identification information.
All telemarketing calls should be tape-recorded, and records maintained for at least two years. At the outset of all calls, the called party should be notified that the call will be recorded for quality assurance purposes and will be maintained as a record of the customer’s order.
Prior to initiating a telemarketing call to any consumer, businesses should:
- scrub against the Federal Do-Not-Call list; and
- scrub against internal Do-Not-call lists.
If the subject lead fails either of the foregoing tests, the consumer should not be called. Leads that pass the foregoing tests should be called in compliance with local time of day restrictions, but not on weekends or federal holidays.
Hire a Telemarketing Attorney to Prepare your TCPA Opinion Letter
As every telemarketing operation is completely unique, this blog is only meant to assist in obtaining a brief and general understanding of the importance of a TCPA opinion letter. Please review your specific situation with legal counsel.
Klein Moynihan Turco’s experienced TCPA attorneys can help your business identify telemarketing best practices and provide the legal advice that should help you avoid time-consuming and expensive litigation.
If you need a TCPA opinion letter or assistance with updating your telemarketing practices and procedures, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information 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 herein without seeking the advice of an experienced attorney.
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