The beginning of a new year is always an appropriate time to set goals for the months ahead. This is especially true for businesses that want to improve upon their telemarketing practices from a Telephone Consumer Protection Act ("TCPA") perspective. There is no time like the present, given that 2021 should be another monumental year for TCPA law developments. In order to assist our telemarketing industry readership, we offer the following, non-exhaustive, TCPA for dummies primer on the much-maligned, oft misunderstood law.
What are the principles of TCPA for dummies?
In general, the TCPA prohibits placing telephone calls to cell phones through use of automatic telephone dialing equipment without the prior express consent of the call recipient. However simple this restriction may be, it provides a remarkable lack of clarity, resulting in an endless filing of TCPA class action lawsuits in the federal court system year after year.
Initially, some businesses may not be aware that the TCPA even applies to their marketing activities because, while the statute speaks of "calls," many businesses market through use of SMS text messaging, instant messaging, ringless voicemail drops, or the like. This is a trap that businesses fall into far too often. However, as a consumer protection statute, the courts and the Federal Communications Commission have interpreted the law broadly to account for rapid changes in communications technology in the years since the law was first enacted. As a result, it is insufficient to feign ignorance of TCPA regulations simply because one does not "call" a consumers in the colloquial sense of the word. If a business markets in a way that touches a consumer's cell phone it is usually safe to assume that the law will apply to the communication, with the exception of email.
Most businesses generally understand that calls should not be placed to people who do not want to be called. However, the concept of prior express consent for TCPA purposes is one that often trips up businesses that want to comply with the statute. This is particularly so because, in some instances, the consent required to contact a prospective call recipient must be "written," such as for advertising calls, whereas for informational calls the required consent need not be in "written" form. More confusing yet, the line between an informational call and an advertising call can be razor thin. This demarcation can mean all the difference to a business depending on the manner in which it is procuring leads for future telemarketing calls.
Finally, what constitutes automatic dialing equipment within the meaning of the TCPA has been a matter of considerable debate and, consequently, much litigation for years. Whether or not autodialing technology was used to place a call or send a text message is often what decides the level of TCPA liability that telemarketers face. This upcoming year, those operating in the telemarketing space should expect much needed guidance on what kind of equipment qualifies as an ATDS for TCPA purposes when the United States Supreme Court issues its decision in Facebook, Inc. v. Duguid, a topic on which we have extensively blogged.
Given that the autodialing prohibition is only one aspect of the regulatory regime created by the TCPA, one might imagine that the nuances of the law render full compliance with the statute complex. This is a correct assumption - TCPA compliance is an exhaustive effort, requiring constant attention.
TCPA for Dummies: Remaining Compliant is no Easy Task
While telemarketing and text message marketing can serve as effective and economical means to engage with prospective and existing customers, it must be done in a compliant fashion. In today's climate, even those businesses with the most robust compliance practices cannot completely eliminate TCPA litigation risk, but it makes defeating claims much easier. As a result, the best advice that any experienced telemarketing attorney can provide for the year ahead is this: work closely with knowledgeable counsel to review existing practices and procedures that are designed to reduce TCPA lawsuit risk. If those policies do not already exist, it is even more critical to speak with counsel to develop and implement them as soon as possible. Remember - the cost of TCPA noncompliance can be economically devastating.
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