The Top Four Facts About TCPA Compliance You Should Know

Updated December 2024

The Telephone Consumer Protection Act (TCPA), regulated by the Federal Communications Commission (FCC), was created to protect consumers from unwanted telemarketing calls.

In short, the purpose of the TCPA is to limit the ways people and companies can call or text message consumers. This is to prevent “nuisance calls,” including spam voice calls and unwanted texts.

Since the TCPA’s creation in 1991, the legal landscape has changed, yet litigation remains prevalent. In fact, managing compliance with these rules is more complex than ever. Risk is increasing as well: In the two years leading up to August 2024, TCPA lawsuits increased 17.1% (WebRecon).

When Does the TCPA Apply?

If you’re using an autodialer, pre-recorded voice, or artificial voice to call consumers, you must follow all TCPA regulations. The rules also apply to most outreach that is classified as marketing rather than informational or administrative. Although the FCC does not always define whether rules apply to voice calls or texts, it has repeatedly found that the term is broad enough to include both phone calls and text messages.

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).

What Are the Costs of TCPA Violations?

What Are the Costs of TCPA Violations?

TCPA liability is uncapped, with actual damages or statutory damages ranging between $500 and $1,500 per violation (per call or text).

The TCPA lets recipients of unlawful calls and texts bring a private cause of action to seek injunctive relief and/or damages. This means that damages for TCPA violations can add up to large sums of money.

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 is so common because almost every business wants to contact cell phones and send marketing messages. Both of these actions fall under the TCPA rules. It’s important for companies to stay up to date on TCPA regulations to minimize the risk of litigation.

Consent Is a Necessity

Before we get into key TCPA tips, let’s talk about consent. Obtaining prior consent before calling, texting, or delivering a voicemail is the first step in TCPA compliance.

The level of consent required depends on the type of communication being sent and the type of technology used to deliver it. The two most important terms used in the regulations for levels of consent are “prior express consent” and “prior express written consent.”

Prior Express Consent

The term “prior express consent” in the context of the TCPA means that the consumer has clearly authorized a specific type of outreach. There is no need for this agreement to be in writing. Prior express consent has fewer restrictions on the format of the agreement, but otherwise it is similar to prior express written consent.

Prior Express Written Consent

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 and/or to use regulated technology. It must also inform them that they are not required to sign the agreement in order to purchase any property goods or services. Customers should know up front exactly what communication they are opting into.

As mentioned above, the level of consent you need depends on the nature of your outreach. In particular, these factors influence the consent needed:

• Use of an automatic telephone dialing system (ATDS).
• Use of pre-recorded or artificially created voice.
• Whether the call or text is classified as marketing or informational.
• Whether the recipient’s number is a landline phone number or wireless number.

For example, if you’re using pre-recorded voice, you generally must get prior express written consent for marketing or promotional purposes. If you use an ATDS to send an administrative message to cell phone numbers, you must have prior express consent (but not necessarily written consent).

Learn more about how these factors impact compliance for your outreach with this TCPA checklist.

Below are four things your organization should know about TCPA regulations.

Make the Opt-Out Process Obvious

Getting proper consent to contact your customers is important, and the same is true when customers leave your campaigns. There needs to be a clear way for people to stop receiving messages from your business. This is typically known as an opt-out or revocation of consent. You should always ensure that calls, text messages, and pre-recorded messages offer a clear way to opt out.

Providing an opt-out prompt keyword can help make the process clearer for your audience. For example, you may consider including “Reply STOP to end” in your first message to a consumer.

However, starting April 11, 2025, this type of prompt will not mean that the consumer has to use the keyword to opt out. You will need to remove them from the campaign even if they use a different phrase like “unsubscribe” or “please remove me.” It’s your responsibility to recognize opt-outs and honor them as quickly as possible (no more than 10 days).

Learn more about consent revocation and the upcoming rule changes with our consent rules eBook.

By making the opt-out process obvious, reasonable, and easily accessible, you can strive toward outreach that is both effective and TCPA compliant. Plus, it contributes to a great experience for your customers.

There Are Always Exceptions to the Rule

When it comes to communicating valuable information to your customers, there are certain times when emergency or informational calls and texts are permitted — even without prior express consent. This applies most often 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 a harmful contaminant. While the company may not have written consent to send the text message, the information constitutes an emergency.

However, these exceptions are not to be exploited to send marketing messages without consent. Including any promotional material in your emergency outreach will create a huge risk of a costly TCPA violation.

Maintain Your Opt-Out List

No matter what outreach you send, it’s a best practice to maintain your own in-house do not call list. This is otherwise known as your “internal DNC list." An internal DNC list allows your customers to opt out of receiving unwanted calls or texts from your business (Contact Center Compliance).

If you send marketing texts or phone calls, or if you use pre-recorded or artificial voice, maintaining this list is legally required by the TCPA. Plus, there are specific requirements for documenting your internal DNC list policies and providing training to your staff.

This internal list serves as your mechanism to process consumer contact preferences. When you receive an opt-out request, you should add that consumer to your internal DNC list. You should also ensure that all outreach systems can access an updated version of the list.

You must reference your internal DNC registry each time you make a telephone solicitation. You cannot text or call numbers on your internal DNC list.

In addition to your internal list, there is also the National Do Not Call Registry. Consumers who do not want to receive telemarketing texts or calls can register their numbers on the National DNC list. Certain states also have state-specific DNC lists. You should scrub your data against national and state DNC registries at least every 30 days.

It's critical to honor opt-out requests and to communicate in consumers' preferred manner. Your in-house do not call list helps you keep track of each record’s preferences and opt-in status. Without this information, it’s tough to know who you’re allowed to contact.

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 and strive to quickly comply with all changes in TCPA regulations. Our team works tirelessly to uphold TCPA rules and other telephonic communication guidelines as we deliver effective outreach.

If you have questions about how Drips helps brands with compliance, we encourage you to schedule a meeting with us.

Disclaimer: This document and all information contained in it are for educational and informational purposes only. Neither Drips nor any of the writers of this document 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.