Blog

Subscribe To Our Blog

Share via Facebook Share via Twitter Share via Email Share via LinkedIn
Telephone Consumer Protection Act (TCPA)

TCPA Compliance

Protect Against TCPA Violations, Penalties, Fines & Lawsuits

What is the Telephone Consumer Protection Act (TCPA)?

Back in the 1990s, one of the biggest frustrations the average consumer had with telecommunications was unsolicited calls: telemarketers at home, commercial faxes at work. To mitigate the problem, the United States passed the Telephone Consumer Protection Act (or TCPA) in 1991, a law designed to address this ever-growing flood of unwanted communications.

The TCPA puts limits on the use of automated dialers, pre-recorded voice messages, telemarketing calls, and debt collection calls. Voice calls and SMS messages, cell phones and landlines are all covered under the statute, along with certain business-to-business calls and unasked-for faxes.

The Federal Communications Commission (FCC) enforces the TCPA, and interprets the law in ambiguous cases. However, the TCPA also includes a private right of actions, which means that consumers themselves can file individual or class action lawsuits against TCPA violators.

Understanding how the TCPA works and what constitutes a violation is of the utmost importance for businesses that place outgoing calls or texts to their customers and other parties. You should be familiar with the seven main provisions of the TCPA, the impact it can have on your business, the two types of consent you need, and how to protect your businesses from lawsuits and fines incurred under the TCPA.

Main Provisions of the TCPA Law (the Rules & Regulations)

The TCPA prohibits businesses from calling any number that appears on the state or Federal Do Not Call (DNC) lists established by the law, as well as their own internal lists of customers who have requested not to be called. It also restricts the use of robocalls and automatic dialers.

The main provisions of the TCPA include:

Call Time Restrictions

Businesses can only contact residential customers between the calling hours of 8:00 AM and 9:00 PM in the customer’s local time zone.

Automatic Telephone Dialing Systems (ATDS)

Businesses cannot make autodialed marketing calls or text messages to cellphones and other devices that might incur a charge for the recipient. Written consent is required for marketing calls; express consent is sufficient for non-marketing calls.

Robocalls

Businesses cannot place artificial or prerecorded voice calls to residential landlines or wireless numbers for marketing purposes, unless prior express written consent has been obtained.

Identification Requirements

Businesses must identify themselves when they call. The TCPA requires callers to provide their name, company name, and a valid telephone number or address.

National DNC List

Businesses that call or text consumers for marketing purposes are required to suppress numbers on the National DNC Registry (and state registries, in states that have them).

Internal DNC List

Businesses must maintain and comply with an internal DNC list so that customers can contact them directly to opt out of calls and SMS messages.

Private Right of Action

This states that individuals (not just the government) can sue TCPA violators and receive up to $500-$1,500 per violation

The last provision, the private right of action, has made it possible for professional, serial TCPA litigators to file huge class action lawsuits against TCPA violators.

TCPA Litigation & Class Action Lawsuits

Roughly speaking, there are three different types of litigants who report and pursue TCPA violations.

First are the people who threaten to sue businesses over TCPA violations in the hopes that the company will offer them an out-of-court cash settlement to withdraw their complaints. These litigants often target small businesses that don’t have the resources to fight a legal battle.

Next are the litigants who actually take TCPA violators to court. Their objective is to win the lawsuit and receive a formal award of compensatory fines, and they tend to pick on medium-size or larger companies.

Finally, there are the professional litigators who file class action lawsuits. This is the most dangerous type to encounter, as the judgments in these cases can run into the millions of dollars as they have the potential to include damages for every consumer that might have been impacted by a company’s TCPA violations. The consumers named in the lawsuit get a small payout, but most of the money goes to the big law firms who bring these suits. They often go after big enterprise-scale companies, but may target smaller businesses as well.

TCPA lawsuits keep increasing—from 2011 to 2017 they went from 351 cases per year to 4,392, an increase of 1,251%.

TCPA Violation Penalties, Damages & Settlements

The penalty for a single prohibited call can run from $500 (or actual damages, if greater) to $1,500 for a willful and knowing violation. The law places no cap on statutory damages, which is why class action lawsuits can reach tens of millions of dollars—or more. This isn’t just a theoretical concern. Consider this list of actual TCPA settlements:

Company

Settlement Amount

Date

Dish Network

$280,000,000

June 2017

Caribbean Cruise Line

$76,000,000

September 2016

Capital One

$75,500,000

August 2014

US Coachways

$50,000,000

March 2018

Wells Fargo

$30,400,000

February 2017

 

Even companies that are able to successfully defend themselves against these lawsuits end up losing significant sums of money to attorneys’ bills. In addition, dealing with TCPA lawsuits distracts you from your core business operations and goals and can invite bad publicity that hurts your brand and alienates consumers.

TCPA Consent

Certain calls require you to obtain consent from the customer before you place them. Certain informational calls do not require consent, but must still be suppressed if the customer has opted out of them. Legally speaking, there are two types of consent you can get:

Prior Express Consent

A written or oral agreement giving consent to receive calls at a particular number. When, in the course of doing business, a customer provides a company with a phone number with no specific conditions attached, express consent is implied (so long as the business only uses it for purposes that relate to the reason the customer provided the number).

Prior Express Written Consent

A written agreement between the caller and recipient that authorizes the caller to deliver “advertisements or telemarketing messages using an automatic telephone dialing system or an artificial pre-recorded voice.” The agreement must include the specific phone number, the recipient’s written or electronic signature, and disclosure that consent is not a condition of purchase.

Prior express written consent is required under the following conditions:

  • Using a prerecorded voice to call a landline or wireless (cell phone) number

  • Using an automatic dialer to call a wireless (cell phone) number, with the following exceptions that only require express consent:

    • Debt collection calls

    • Informational calls (delivery notifications, public utility notices)

Landline calls must omit numbers that are on any DNC lists to which the company is subject. Unless you have an established business relationship, express written consent is required to call any number on the National DNC Registry for marketing purposes.

Wireless and VoIP Numbers

The TCPA is especially protective of wireless and voice-over-IP numbers, because in the past these numbers could incur costly per-minute charges even for incoming calls. Most consumers have unlimited calling plans these days, but the law hasn’t yet changed to reflect this.

You must have express written consent to call wireless and VoIP numbers with an automated dialing system. These numbers used to be identifiable by their prefixes, but now that consumers can transfer their numbers between services, this is no longer reliable. Marketers must be diligent about identifying wireless and VoIP numbers and scrubbing them from their call lists.

How to Avoid Wireless/VoIP Violations

The best way to stay compliant with TCPA regulations is to identify wireless and VoIP as thoroughly and accurately as you can before feeding them into automated dialing systems or manual to-call lists.

Your list of numbers to call must include the type of consent you’ve obtained for each number and your reasons for calling them.

You should also keep track of transfers and change your handling of transferred numbers appropriately.

Reassigned Numbers

An important rule to remember is that consent is associated with individual consumers, not their phone numbers. Consent to call a particular number becomes invalid as soon as that number is transferred to a new owner.

Until the D.C. Circuit Court struck down an important FCC order, you were allowed one erroneous call to a reassigned number. Now, however, with that interpretation invalidated, plaintiffs have resumed suing companies over even one reassigned call.  Therefore, companies need to scrub against a list of reassigned numbers.

How to Avoid Reassigned Numbers Violations

Knowing when numbers have been reassigned, and using the right tools to scrub your lists and remove them, is crucial to avoiding TCPA lawsuits.

Fortunately, the FCC is expected to make a Reassigned Number Database available in the near future. This will be the first authoritative source businesses will have for identifying reassigned numbers. In the meantime, making a good faith effort to get consent, identify numbers, and scrub your lists accordingly should give you some protection.

How to Protect Your Business Under the TCPA

For businesses that make a lot of marketing calls or other outbound communications, staying in the good graces of the TCPA can be a lot of work. Here’s a brief rundown of the most important ways to protect your business:

  • Familiarize yourself with the provisions of the TCPA listed above and comply with them

  • Identify and avoid litigators and professional plaintiffs who file class action lawsuits—they may already be in your CRM database! Compile a list of individuals and attorneys who have been involved in TCPA lawsuits and scrub your contact list against it regularly

  • Check for reassigned numbers to the best of your ability—removing reassigned numbers from your call list is one of the trickiest parts of TCPA compliance, but it’s also one of the most important

  • Identify wireless and VoIP numbers whenever possible in order to determine the type of consent you are required to have obtained for them

One last suggestion—make sure that the wording on your consent forms and documentation is clear and understandable. You should include a legally-vetted arbitration clause that states that your customers agree that if there is any dispute over the services provided under your terms and conditions, they will submit to arbitration and cannot enter into any class action lawsuits.

Every direct marketer should make sure to do this. These clauses can—and do—stop class action lawsuits from going forward.

Conclusion: The Right Experts with the Right System

If you’re worried that professional TCPA litigators might be hiding out in your customer database, or if you’re having trouble keeping up with all of the relevant provisions required to cleanse a particular list, there’s a good chance you’d be well-served by an expert solution.

The right specialists, utilizing solutions flexible enough to fit seamlessly with your existing internal processes, can transform your business and eliminate the distractions that can result in costly violations or lawsuits, thus freeing you to focus on the things your business does best.

At Contact Center Compliance, we deploy an advanced do not call scrubbing tool called DNC Scrub® that includes Litigator Scrub®, an award-winning, cloud-based defense against serial TCPA litigators and professional plaintiffs. This solution encompasses all of the legislative compliance requirements discussed above, helping our clients eliminate exposure to both TCPA and DNC risk.

Our DNC Scrub® solution includes the right ecosystem and IT resources to fully manage your Federal, state, and Internal DNC scrubs and all TCPA provision requirements in a single job. We offer simple, flexible processes that allow our customers to come to our website and manually upload a list of phone numbers, schedule nightly SFTP jobs, or set up real-time API connectivity. Additionally, you can get real-time updates and increased efficiency from our enterprise-level integrations with platforms you’re already using.

With over 70 billion scrubs performed (and counting) and 0 violations, fines or lawsuits incurred by our clients, you can now market with confidence.

We’re happy to talk more about how we can help you minimize exposure to DNC and TCPA compliance threats. Click here to book time with a friendly compliance expert.


 

Compliance is Complex, but We've Made it Simple. Start Here.

Related Posts