Marketer In Hot Water for Inconspicuous TCPA Consent Language

June 13, 2017

tcpa-consentA recent decision issued by the United States District Court for the Northern District of Illinois has brought renewed emphasis to the importance of prominently displaying TCPA consent language in Internet marketing.  In a case chiefly concerning alleged deceptive marketing practices, the ruling touches upon Telephone Consumer Protection Act (“TCPA”) and Internet marketing consent best practices.

On what basis did the Court decide that the TCPA consent at issue was deficient?

This matter concerns an Internet marketing campaign designed to generate TCPA-compliant leads for potential purchasers of health insurance.   The landing page at issue contained TCPA consent language which, when filled out by consumers, purportedly provided their express written consent to receive calls via automated means.  However, because the TCPA consent language appeared in small print and was located below the subject “submit” button at the bottom of the landing page, the Court concluded that it was reasonable to assume that consumers did not receive adequate notice that they were providing TCPA consent.

The Court also analyzed the applicability of the “health care rule” to the subject telemarketing calls, given that the nature of the calls was ostensibly health care-related.  The “health care rule” provides a carve-out exemption to the written consent requirement for telemarketing calls that deliver health care messages.  However, because the telemarketing calls at issue actually concerned opportunities to purchase insurance, rather than the provision of care to consumers, the Court rejected the notion that the “health care rule” applied.

Because the case is still in the nascent stages, and the Court issued its ruling based only on the allegations contained in the initial complaint, it is important for interested parties to maintain a keen eye towards the remainder of the proceedings.

Proper Location of TCPA Consent Language is Crucial to Avoiding Liability

This federal court decision reinforces the emphasis that courts and regulators around the country have been putting on the location of online consent language when analyzing the validity of the subject purported consent.  When procuring TCPA consent online, we consistently warn marketers of the fact that improper placement of disclosure language may result in a finding that a consumer has not provided sufficient consent to be called through use of autodialing technology.   The ruling here establishes that, at a bare minimum, marketers should ensure that such TCPA consent language is placed above the “submit” button that results in capturing a user’s consent.  While this is a prudent first step, there are various other practices that marketers can and should adopt to ensure the quality of the sought-after TCPA consent.   The nuances contained within the rules and regulations governing Internet and telemarketing underscore the need for businesses operating in this space to consult with competent counsel prior to engaging in any marketing campaign.

If you are interested in learning more about this topic, need to review your Internet or telemarketing practices and procedures or if you are facing an investigation from the FCC or other regulatory agency, please e-mail us at, 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 contained herein without seeking the advice of an experienced attorney.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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