The Telephone Consumer Protection Act (TCPA) is a law that protects the consumers' privacy rights, and it’s important to avoid TCPA violations that may lead to a costly lawsuit.
It prohibits unsolicited calls, text messages and faxes, made from auto-dialer devices or using pre-recorded messages.
Today, TCPA violation lawsuits are one of the most common cases in federal courts. They levy hefty penalties/statutory damages and companies can lose millions of dollars in the process. However, with strict monitoring and regulations in place, companies can easily avoid a costly lawsuit.
What the Law Says
When the law was passed in 1991, a majority of the American population had landlines. The gradual popularity of mobile phones gave telemarketers an opportunity to launch advertising campaigns. This resulted in a rise of TCPA violations and almost 5,000 TCPA lawsuits were filed in 2016.
There have been two major revisions. In 2013, the TCPA made it mandatory to obtain written prior consent for autodialed, pre-recorded calls and texts to a mobile phone (or landline). It was also mandatory for companies to comply with the following:
- Companies (using ATDS or pre-recorded message) must identify themselves at the beginning of the message/call.
- They must also provide a telephone number for customers to contact (which cannot cost a caller more than the local or long-distance call charges).
- Companies must also necessarily provide an option to make a do-not-call request.
In 2015, the second major revision came in response to petitions and requests for clarity on the interpretation of the law by FCC. Consequently, the TCPA Declaratory Ruling and Order was released. It clearly defines what constitutes terms such as automated telephone dialing system and revoking prior express consent, among other clarifications.
Common TCPA Violations
As a company, non-compliance of TCPA regulations could result in hefty damages. Each violation (call, text message or fax) can cost the company $500. Due to this, class action lawsuits tend to cost the company more money (in damages or in defense lawyer fees). Although most of these cases can be easily avoided, some types of TCPA violations continue to grow:
1. Do Not Call Registry
Numbers registered in the National Do Not Call Registry are strictly off-limits for telemarketers. Because of this, a violation of this can result in exorbitant penalties to the FCC. Similar lists exist in the form of state-controlled Do Not Call registry and an individual company’s do-not-call list.
Calling numbers on these lists can result in the charge of “willful violation” of the TCPA. In 2017, Dish Network was charged a civil penalty of $280 million for the violating the rights of consumers registered in the DNC list.
2. Reassigned Numbers
Another common occurrence is calling numbers that previously belonged to someone that owed a debt (unpaid bills). King v. Time Warner Cable (TWC) is a landmark case with regard to reassigned numbers. In this case, the called party did not have a business relationship with the company or owe any unpaid bills.
Despite this declaration and a request to stop the calls, the company continued placing multiple calls a day through an automated-dialer system. Since the calls continued after a request to cease the calls, the court ruled in the favor of the Plaintiff (in 2015) and ordered TWC to pay her $229,550 in damages ($1,500 per call).
It also resulted in the clarification of the term “called party”. The court ruled that the recipient of the calls is considered the called party (and not who the call was intended for). In such cases, the first call (the safe harbor call) made to a reassigned number is not liable for a penalty.
Tips to Avoid TCPA Violations
While the penalties for TCPA violations can be a difficult and an expensive affair, it is much easier to avoid violating the TCPA. This can be done through the implementation and enforcement of some preventive measures suggested by the DNC registry:
1. Written Prior Express Consent
Obtain written consent for autodialed/pre-recorded calls from consumers. The consent should include the telephone number authorized to receive the automated calls and the signature of the consumer. Additionally, consent forms should be clear and easy to understand. If not, they can be considered invalid by the court.
They should also be unambiguous in their request to deliver calls and messages via ATDS. It must also be conveyed that opting out of the service does not disqualify the consumer from receiving goods or services from the company. Maintain the form records for at least 4 years.
2. Third-Party Vendors
If your company outsources their telemarketing services to a third-party vendor, review the vendor’s policies carefully. In the case of a violation, your company will be held equally or primarily responsible for the third-party vendor’s violations.
Assurances from vendors must not be trusted as the court will still hold the company liable for the violations. Reputable marketing partners must be selected and regularly monitored with follow-ups to ensure compliance enforcement.
3. Compliance with the Do Not Call List
Scrub the National and State Do Not Call Registry to ensure that numbers registered on those lists do not receive automated or pre-recorded advertising calls/messages.
Because of this, it is one of the most costly violations, and it can result in federal and state fines. This can be anything from $25,000 to $40,000.
4. Consumer Complaint Resolution
Consumer complaints must not be taken lightly and it's essential to resolve every dispute quickly and efficiently. A friendly tone with a disgruntled consumer can avoid a potential lawsuit with millions in damages.
The FCC understands genuine mistakes and will be lenient if the company can prove its documentation of compliance processes.
5. Be Updated
Be up-to-date with the FCC and TCPA regulations. Cases frequently challenge some provisions which result in amendments. Regular internal reviews can ensure any new amendment is updated. Because of this, you must ensure all updates are communicated and enforced with regards to marketing partners or third-party vendors.
6. Opt-Out Options
Provide consumers with convenient ways to opt out of receiving ATDS calls or text messages. This could be offering the option to send a message such as “STOP” or “UNSUBSCRIBE” to a particular number.
If you are unsure of your company’s compliance processes, you can seek professional guidance. Our team of attorneys is experienced in the nuances of TCPA and telemarketing regulations. We can help you design internal regulations that monitor and protect your company from losing millions of dollars in a TCPA violations.Request a Free Consultation NO COST, we don't make a dime unless you do!