Updated November 2023
In 1991, the Telephone Consumer Protection Act (TCPA), regulated by the Federal Communications Commission (FCC), was created to protect consumers from unwanted telemarketing solicitation calls. Courts have summed up the purpose and history of the TCPA by noting that Congress was trying to prohibit the use of automated telephone dialing systems (ATDS) so as to prevent nuisance calls. Although the FCC has not expressly defined the term “call,” it has repeatedly found that the term is broad enough to include text messages. Courts have granted unhesitating deference to this determination. Thus, all marketing calls and text messages are subject to the TCPA.
Fast forward to 2023. TCPA litigation remains prevalent and managing compliance with these rules is more important than ever. So far in 2023, TCPA filings have increased 17.1% compared to last year (TCPAWorld).
In order to make auto-dialed, pre-recorded, or artificial calls to customers or consumers, you must comply with all TCPA regulations. These regulations apply to all companies, even those with call centers in other countries, as long as their customers are in the United States (TSG Global). Remember, aspects of the TCPA laws also apply to text messages (TCPAWorld).
In general, TCPA regulations prohibit contacting a consumer’s cell phone for the purposes of marketing or promotional messages using an ATDS, also called an autodialer. The TCPA also generally disallows using prerecorded or artificial messages without prior express written consent.
Why is TCPA compliance important? There can be billions in exposure under the TCPA, as the TCPA permits recipients of unlawful calls and texts to bring a private cause of action to seek injunctive relief and/or damages. TCPA liability is uncapped, with actual damages or statutory damages ranging between $500 and $1,500 per violation (per call or text).
There are more multimillion-dollar class action settlements under the TCPA than any other statute. Major corporations have suffered historic TCPA settlements totaling into the millions of dollars. TCPA risk commonly arises because almost every business wants to contact cell phones. It’s important for companies to stay up to date on TCPA regulations to minimize the risk of similar litigation.
Below are four things your company should know about TCPA regulations.
Consent Is A Necessity
TCPA compliance starts with obtaining prior consent before calling, texting, or delivering a voicemail. The level of consent legally required will depend on the type of communication being sent and the type of technology used to deliver that communication. If you are using regulated technology — i.e., an autodialer, pre-recorded message, or artificial call — you must obtain prior express written consent for marketing or promotional purposes. Obtaining consent is the gateway to communicating in a compliant manner.
The term “prior express written consent” means an agreement, in writing, bearing the signature of the customer called or texted that clearly authorizes you to send that customer advertisements or telemarketing messages using regulated technology. The agreement must also include the telephone number to which the customer authorizes such telemarketing messages to be delivered.
The opt-in language must be clear, concise, and easy to understand. It must inform the customer that by agreeing or providing their signature they are authorizing you to send marketing messages using regulated technology. It must also inform them that they are not required to sign the agreement as a condition of purchasing any property goods or services. Customers should know up front exactly what communication they are opting into.
Make The Opt-Out Process Obvious
Since getting proper consent from customers to opt into your communications is so important, it’s no surprise that properly handling opt-outs is just as critical. This means there needs to be a clear way for people to stop receiving messages from your business. You should always ensure that calls, text messages, and pre-recorded messages all offer a clear, unambiguous opportunity to opt out of communications. It’s your responsibility to honor all opt-outs immediately.
By making the opt-out process obvious, reasonable, and easily accessible, you can maintain key portions of TCPA compliance while also keeping your customers happy.
There Are Always Exceptions To The Rule
When it comes to communicating valuable information to your customers, there are certain times that emergency or informational calls and texts are permitted — even without prior express consent. This is most relevant to companies such as banks, healthcare providers, and schools.
A prime example would be an alert to a consumer from a pharmacy that a prescription was found to have had a contaminant that could be a danger to the consumer. While the company may not have written consent to send the text message, the information constitutes an emergency, and it could be most efficient to simultaneously send an informational message to all consumers with the same prescription.
Maintain Your Opt-Out List
No matter what your business is, you must maintain your own in-house Do Not Call (internal DNC) list that allows your customers to opt out of receiving unwanted calls or texts from your business (Contact Center Compliance). You must also maintain internal do not call policies and procedures.
Consumers who do not want to receive telemarketing texts or calls can register their numbers on the National Do Not Call registry. Certain states also have state-specific DNC lists that you should scrub prior to making any telemarketing texts or calls.
You should scrub your data against the DNC registry at least every 30 days and your internal DNC registry each time you make a call or text. You cannot text or call numbers on your internal DNC list.
With the slow death of landlines in favor of cell phones, it’s even more important that you know which of your customers are safe to call. It’s critical to honor your customers’ requests and ensure you are communicating with them in a way that is welcomed. Your in-house Do Not Call list helps you understand who you’re allowed to contact based on each record’s preference and current opt-in status.
Our Ongoing Commitment To TCPA Compliance
Drips is proud to maintain a best-in-class database to support compliance with state-level and federal-level TCPA laws. We closely follow new FCC rulings that could affect our clients and strive to comply with all changes and nuances associated with TCPA regulations. Our team works tirelessly to uphold TCPA and other telephonic communication guidelines as we deliver effective conversational outreach.
If you have questions about how Drips helps brands with TCPA compliance, we encourage you to schedule a meeting with us.
Disclaimer: This blog and all information contained in it are for educational and informational purposes only. Neither Drips nor any of the writers in this blog are law firms or attorneys, and nothing herein should be construed as or relied on as legal advice. Drips and the authors herein disclaim any obligations relating to the timeliness or accuracy of the information contained here. No warranties should be implied. Although intended to be current and accurate, regulations and court rulings, as well as interpretations of the same, are always changing and we recommend consulting with your own counsel.