The telephone consumer protection act (TCPA) is a landmark piece of legislation that every salesperson and telemarketer should be aware of. A lack of awareness can lead to an expensive lawsuit for violations of the TCPA. The recent trend among consumer protection advocates has made it necessary for businesses to increase their proactivity in order to protect themselves from large class action lawsuits, administrative fines, and settlements. The ACT itself is a legal behemoth, so here are a few tips on how to avoid being at the receiving end of legal service.
Consent is Key
The most important thing to remember is that when contacting any customer, consent is absolutely required. In recent class action suits, the court was quick to dismiss complaints where the defendant was able to show that they had clear and unambiguous consent. The legal matters are complex but when faced with a mixed class, where some had given consent and others had not, the court have opted to dismiss class actions.
For more information on how class actions and certification could work, see Sawyer v. KRS Biotech Inc.,
The Consent Clause
Since proving consent can be a cornerstone of defense against a class action for violation of TCPA rules, it is important to have a clear, well written, and legally verified consent clause. This should include language that supersedes any previous or existing opt-in or opt-out clause, clearly provide a means of consent revocation, indicate the methods by which your company may make contact, and include any third parties or affiliates that may also use the contact information.
In Reyes Jr. v. Lincoln Automotive Financial Services, a clear consent clause prevented the consumer from revoking his consent when it was part of a contract.
Appropriate Use of Dialer Technology
One of the major reasons’ companies get in trouble with TCPA violations is they do not use their dialer technology appropriately. For example, the TCPA mandates that a company must have express written permission to text or autodial a cellphone number using a automatic telephone dialing system. The 9th Circuit Federal Court of Appeals has held that all modern dialing technologies fall within the definition of an automatic dialing system. However, a defendant who is able to use the definitions of their federal district court and show that they did not use an ATDS to make the calls may be able to get the complaint dismissed.
Herrick v. GoDaddy LLC, is an interesting case because GoDaddy was able to prove that their texting platform was not able to randomly and sequentially generate numbers which showed the court that substantial human interaction was involved and this took the software outside of the definition of an ATDS.
Even companies that follow all the rules have to be able to prove to a judge that they were compliant. If a defendant intends to follow a “Safe Harbor Defense” strategy, they have to be able to show proof of compliance with all aspects of the TCPA. Some of the things a company should be able to provide include –
· Written manuals and policies
· An internally maintained do not call list that is periodically scrubbed against the National do not call registry and individual state’s do not call registries.
· A system to check company data against reassignment lists.
For more information on how the safe harbor rule applies, Roark v. Credit One Bank, is a good place to start.
Finally, always have a clear arbitration agreement built in to any consumer contracts. Requiring arbitration is one way to avoid the expense of litigation and a failure to have a well drafted arbitration clause has led many companies to have to settle expensive suits. Hanson v. TmxFin, provides an excellent case of a well written arbitration clause with the appropriate opt-out languages.
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