TCPA Regulations

Definitions Under the TCPA

Definitions Under the Telephone Consumer Protection Act (TCPA)

 

If you are in sales, marketing, or a telemarketer by trade it is important to understand the rules found within the Telephone Consumer Protection Act (TCPA) in order to avoid accidentally violating them. TCPA Violations can lead to fines or even losing the ability to telemarket.

Here is what you need to know:

Telemarketing Defined

The regulations consider a telemarketing call to be one made by advertisers to offer or sell products or services.  If you are simply providing information it is not telemarketing.  For example, an airline telling you a flight has been delayed is not considered telemarketing.

An Autodialer is a Machine or Software That Helps You Make Calls

When you have to pick up the phone and personally dial every call, it can take a lot of time and slow you down.  Minutes are wasted dialing, waiting for someone to answer, and getting busy signals.  An autodialer can automatically call people for you and give them a recorded message or connect you once they have answered.  While this is a more efficient calling method it is also more highly regulated.   If your autodialer delivers a pre-recorded message it is considered a robocall, the most highly regulated form of telemarketing.   Previously, if a consumer had an existing business relationship with you a robocall would be acceptable.  Now, there must be prior written consent in order to avoid a violation.

Text Messages Are Regulated by the TCPA

Recent regulation has made it more difficult for telemarketers to contact people on their cell phone.  Now, if you want to send a text message you need to have prior written consent from the consumer to do so.  This cannot be considered implied consent but must be clearly spelled out in writing.  You can have consumers sign their consent on a traditional piece of paper or electronically give their consent.  This is a big change because in the past an existing business relationship fulfilled this requirement. The only exception is text messages for the purpose of informing someone, rather than selling them something.

Do Not Call Registry 

It is important to always scrub your call list against the national Do Not Call Registry.  Remove anyone that is on the registry from your list.  If you contact someone that was not registered, but wants to be removed from your list, you must do so immediately.  It is wise to have a written policy in place for how you remove people once a request has been made.

Violating TCPA Regulations

If you violate the TCPA guidelines you could be fined anywhere from $500 to $1,500 per call, message, or text.  This is not per day but per call.  If you make 100 calls that violate these regulations that could be a $150,000 fine.  Many companies have gone out of business due to these penalties.

Stay up to date on regulation and create policies and procedures to protect yourself and your company.  Taking the time to ensure that you are in compliance could save you money and headaches down the road.

New TCPA Rules and Express Written Consent

Businesses and telemarketers need to be aware of the new Telephone Consumer Protection Act of 1991 (“TCPA”) regulations that took effect the end of last year.

Telemarketing rules have changed and where robocalls are concerned, it is no longer business as usual.  Prior to theses changes a business could contact a customer that was perceived to have given implied express consent.  That is no longer the case.

What type of calls are impacted by the changes:

Calls and text messages to consumers are now being regulated differently. This includes:

  • telemarketing calls and text messages initiated to mobile devices using an automatic telephone dialing system (“ATDS”) or using an artificial or prerecorded voice;
  •  and (ii) telemarketing calls made to residential land lines using an artificial or prerecorded voice.

If you are using a cold calling software that can store and dial multiple numbers for calls or text messages, you fall under this category.  Previously the TCPA guidelines were more concerned with calls that had a prerecorded voice or were automated so that a live telemarketer was not on the line when a customer answered.  Now they are focusing on calls made with this type of calling software, whether a live rep is on the phone or not.

Implied Consent vs. Express Written Consent

Prior to the rules changing a company could contact a customer using a robocall if they had given prior express consent.  This could have been given in writing or in conversation.  Now, a company needs to obtain prior written consent in order to contact someone.  This is going to require companies to identify creative ways to secure the consent and continue reaching their customers.

What does the consent need to include?

In order to be valid the express written consent must include a clear description or understanding that the company will be making calls to the consumer and the consumer is in agreement with that fact. It must clearly state the phone number that the business may call.  It must contain the consumers signature.  If it is missing any of these items the consent is invalid and a company can be held liable for placing the call.

To obtain adequate “prior express written consent” under the new rules, there must be a written agreement between the company and the called party that meets the following requirements:

What about existing customers?

If a customer previously gave approval for a call in conversation or implied their consent, a company must get a new written consent form before calling or texting them.  This applies to telemarketing calls, not informational calls.   If you have obtained prior written consent but the consent no longer meets the TCPA standards you need to receive a new one.  Also it is important to remember that a consumer can revoke their consent at any time.

It is important to protect your company and telemarketing staff from being exposed to liability.  TCPA violations can have a penalty of $500 to $1,500 for every violation.  If you are sending a block of text messages that fine could apply to every single text.  It is better to simply obtain the written approval.