If you use robocalls or texting to advertising a product or service, be sure to familiarize yourself with recent TCPA developments. First passed in 1991, the Telephone Consumer Protection Act (TCPA) protects consumers from unwanted or unrequested phone solicitations. The Federal Government plans to enact additional measures designed to further solidify the existing law.
The Telephone Consumer Protection Act
Marketing and advertising are vital components of any successful business, and more often than not, the “most heard” message is the one that sticks in the consumer’s mind. Not surprisingly, businesses capitalized on the immediacy and convenience of telemarketing and automated messaging systems.
Under the TCPA, businesses are required to obtain prior consent from consumers before engaging in any telemarketing, automated messaging, text messaging or fax solicitations. The TCPA defines conditions for prior consent as:
- A clear and unambiguous statement for consumers regarding future solicitation attempts;
- Solicitations are not a condition of purchase;
- Businesses must obtain and use a designated phone number as provided by the consumer.
Since the passing of the TCPA, the Federal Communications Commission has made it a point to enforce the law – and they’re not shy about handing down multi-million dollar judgments.
New TCPA Consent Requirements
The Federal Communications Commission amended the existing TCPA law to include additional requirements for businesses to follow. Starting on October 16, 2013, any business sending out solicitations must first obtain prior consent in writing from consumers before engaging in this type of marketing. This new mandate applies specifically for any text messages, auto-dialed messages and pre-recorded calls sent to cell phones and residential land lines.
Businesses can exercise their own discretion in terms of how they obtain written consent from consumers. This includes consent given through email, text messages, website forms and telephone key press in the form of digital or electronic signatures. The signature requirement ensures consumers have taken some type of deliberate action in their consent to receive marketing solicitations. These requirements match those laid out in the E-SIGN Act, which specifically addresses electronic and digital signature authorizations.
The stiff penalties involved with violating the Telephone Consumer Protection Act are nothing to sneeze at. Businesses found to be in violation of the law stand to pay out anywhere from $500 to $1,500 for each unsolicited call and text message sent.
As it’s not unusual for business marketing campaigns to send out hundreds or even thousands of messages at a time, TCPA fines can quickly amount to hundreds of thousands of dollars in a matter of days. Businesses that persist in violating the law may also be subject to consumer class action litigation suits where penalty fines can easily reach multi-million dollar amounts.
Steps Businesses Can Take To Make Sure They’re In Compliance With The TCPA
With the start date for the newly amended TCPA law just around the corner, businesses would do well to start implementing the new requirements before revisions go into effect. In the event a consumer files a claim, the business has to prove it obtained written consent from the consumer. Businesses must also show they provided a clear and unambiguous disclosure message when consent was given. This is the strongest defense a business can present to protect itself from litigation
In the case of consent in the form of digital signatures, a business can use the following materials in their defense:
- Web page printouts of consumer consent notifications;
- Printouts of screenshots showing the consumer’s signature (e-signature) and phone number;
- Consumer IP address records.
Since the federal statute of limitations on TCPA violations remains active for four years, businesses should make keep records of written consents received for a minimum of four years.
If you need a TCPA lawyer to review your material for compliance, contact Kelly Warner Law.