The Critical Role that the TCPA Plays in Outbound Telemarketing

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Critical Role that TCPA Plays in Outbound Telemarketing- KMT
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If you’re running any sort of outbound telemarketing campaign – phone calls, voicemail drops, or text messaging – you need to understand the Telephone Consumer Protection Act (TCPA) and its enabling regulations.

Call center operators are not the only businesses that employ outbound telemarketing to reach out to consumers. Using the phone is often an essential tool for most businesses, especially as of the COVID-19 lockdown of last year. Getting the consumer on a phone call to respond to an inquiry or provide information for a product or service is not only helpful but, in some cases, a must. Therefore, understanding how to appropriately conduct telemarketing operations is crucial in our current business and social environment.

Let’s look at some TCPA regulations that anyone making outbound sales calls should follow.

5 Tips for Outbound Telemarketing Sales Compliance

Beyond focusing on promoting a product or service, pursuant to the TCPA, advertisers must approach and communicate with consumers respectfully and within the law. Although we provide 5 important tips below, there is much more to consider before picking up the phone to call a prospective lead.

  1. Unless proper TCPA consent is obtained, telemarketers must scrub all numbers to be dialed against the Federal Do-Not-Call list. However, telemarketers may call anyone with whom it has an established business relationship for up to 18 months after the consumer’s last purchase, delivery, or payment—even if the consumer’s number is on the Federal Do-Not-Call list. In addition, telemarketers may call a consumer for up to three (3) months after the consumer submits a service/product related inquiry to it. 
  2. Calls/texts should only be placed/sent between the hours of 8:00am and 9:00pm local time, and should not be placed/sent on Sundays. Additionally, residents in the States of Alabama, Louisiana, Mississippi, Rhode Island and Utah should not be contacted on federal holidays.
  3. In situations where a consumer answers, and the call is automatically dropped or not connected to a salesperson or prerecorded message within two (2) seconds, the TCPA considers the call “abandoned.” In order to comply with the TCPA, abandoned calls must average no more than 3% for each campaign over a 30-day period.
  4. There are also caller identification requirements that must be complied with, i.e., cannot block or transmit misleading caller identification information.  The “No Rebuttal Rule” should be observed in certain states.  The “Permission to Continue Rule” should be observed in certain states.
  5. All telemarketing calls should be tape-recorded, and records maintained for at least two (2) 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.

Here are some examples of general telemarketing compliance issues and recommendations:

  • Is your business using a full corporate name or a registered DBA?  Brand names do not work.  Only full corporate names or registered DBAs should be used.
  • Where applicable, does your business have consent to call through automated means?
  • To comply with permission to continue requirements, where the consumer indicates that he/she is not interested in the featured offer, the telemarketer should proceed to the courtesy close and, thereafter, end the call.
  • An 800 number for customer service should be provided during the call.

How to Deal with Preventable TCPA Mistakes

While outbound telemarketing can serve as effective means to engage with prospective and existing customers, businesses must comply with applicable state and federal regulations.  Even those businesses with the most robust compliance practices cannot completely eliminate TCPA litigation risk. (See this example of a 7 million dollar class action settlement from 2017.)

The best advice that any experienced telemarketing attorney can provide is to work closely with knowledgeable counsel to review existing practices and procedures that are designed to reduce TCPA lawsuit risk. 

If you are involved in the telemarketing industry and need a compliance review of your business practices and procedures, please e-mail 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 contained herein without seeking the advice of an experienced attorney.

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Photo by Axle Adamos on Unsplash

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