Beginning October 16, 2013, prior express written consent became a requirement for all autodialed/pre-recorded calls and text messages, made and/or sent to cell phones, and pre-recorded calls made to residential land lines for marketing purposes.
What follows is intended to be a brief refresher of relevant consent requirements and obligations under the Telephone Consumer Protection Act.
As a starting point, the TCPA requires that unambiguous, prior express written consent must be obtained by businesses that wish to make robocalls and send text messages to consumers. For compliance purposes, text messages are treated like calls to cell phones. In this context, unambiguous means that the consumer receives a “clear and conspicuous disclosure” that he/she will receive future calls/text messages that deliver autodialed and/or pre-recorded telemarketing messages.
The TCPA also requires that such consent cannot be made a condition of purchase. Marketers must therefore designate a telephone number at which it can be reached in conjunction with the advertised product or service.
What is “prior express written consent?”
PEWC can be obtained via numerous methods and may be verbal or written. Acceptable methods of obtaining express written consent include an electronic “signature” via email, a website form, a text message, a telephone key press or a voice recording.
While electronic or digital forms of signature are acceptable, marketers have the burden to prove that lawful PEWC was obtained. Thus, the implementation of strict recordkeeping and maintenance protocols are vital.
Voice consent must be provided properly, following an unambiguous disclosure. In order for voice consent to be valid, the calling party must first have clearly informed the recipient that the call is for telemarketing purposes and that they may be receiving future auto-dialed or automated communications at a number they designate.
At a bare minimum, there must be some sort of an affirmative act that unequivocally evidences an understanding of the implications of the consent.
While TCPA has no practical impact upon a live, manually dialed call to either a landline or a cell phone, the “capacity” of the technology being utilized to place the call is of great importance. Whether or not the technology possesses the “technological capacity” to be considered an autodialer is a hot-button litigation issue.
Consent to call must come from “the person called” and the consent must be given to “the person or entity on whose behalf a telephone call or message is initiated.” Thus, in a lead generation context, all those in the data brokerage stream must be extremely vigilant with respect to third-party lists and are well advised to carefully inspect authorizations and scope of consent.
In light of the increasingly aggressive TCPA litigation landscape, with damages ranging from $500.00 to $1500.00 per violation, particular focus must be paid to reducing the risk of litigation. In fact, in 2014 Connecticut signed into law TCPA-like legislation that provides for statutory damages of up to $20,000.00 per violation.
Consult an experienced Internet advertising compliance lawyer for assistance interpreting how the TCPA requirements apply to your business. Develop written policies and procedures that ensure operational compliance, taking into account land lines, cell numbers, faxes and text messages.
For all forms of communications addressed by the TCPA, an easy mechanism to allow customers or prospects to opt-out of future communications must be provided. This process must be able to capture, document and archive consumer preferences.
Employee training is critical, especially, customer-facing employees, and should be documented in the event of a regulatory investigation. Such training – no less an annually – should necessarily include proper processing of suppression requests and how to secure various components of a “safe harbor” defense to a potential TCPA violation.
Work with telemarketing compliance counsel to draft a fully-compliant TCPA adherence script for all customer-facing employees. Amongst, other things, the script should take into account corporate do-not-call policies to ensure that they are properly communicated upon consumer request.
Data use obligations and restrictions, as well as risk-shifting provisions, contained within third- party vendor contracts should also be reviewed by counsel as they are often requested in conjunction with discovery or a regulatory investigation. Ensure that all such vendors have implemented easily documented policies and procedures pertaining to TCPA compliance.
This matter should be of interest to any company or individual engaging commercial telemarketing campaigns, including corporate counsel. If you are interested in reviewing your telemarketing practices, please contact the author at (212) 756-8777, rnewman@hinchnewman.com and www.hinchnewman.com.
Information conveyed in this article is provided for information purposes only and does not constitute, nor should it be relied upon as legal advice. This information is not intended to substitute for obtaining legal advice from an attorney. No person should act or rely on any information in this article without seeking the advice of an attorney
