In the early '90s, Congress passed the Telephone Consumer Protection Act ("TCPA") to restrict certain telemarketing activities. The TCPA's essential purpose is to protect consumers from uninvited telemarketing. Over the last 30 years, what constitutes TCPA law has become a patchwork of statutes, regulations, and judicial decisions, largely the result of regulators and courts trying to catch up with rapidly advancing technology. Plaintiffs and their attorneys have taken full advantage of the inherent ambiguity of the fluid legal arena and filed hundreds of TCPA suits each year, seeking damages ranging from $500-1,500 per violation.
Wading through the almost weekly changes to the law requires mastering a litany of rules, exceptions, and even exceptions to the exceptions. Staying up to date (and ahead of the plaintiffs' bar) is critical to any telemarketer's success. In this blog, we provide some key points that telemarketers need to be aware of.
Text Message campaigns
- The TCPA bans (1) using an autodialer to send unsolicited advertising text messages and (2) sending advertising text messages to a consumer whose phone number is on the National Do Not Call Registry.
- Do you have prior express written consent to text a particular consumer? If you do, then you are likely in compliance with the TCPA. If you do not, then you should not send the text message.
- Are you sending telemarketing (advertising) text messages? Telemarketing messages include solicitations to buy property, goods, or services. Job alert text messages, for instance, do not qualify as telemarketing messages, but a message offering insurance quotes does.
Prerecorded Calls
- TCPA law restricts the use of an artificial voice or prerecorded message in telemarketing calls without prior express written consent.
- Does your TCPA consent language include the right to contact consumers using an artificial or prerecorded voice?
- During your calls, are you including the necessary disclosures when using an artificial voice or placing a prerecorded call?
Faxes
- The TCPA restricts telemarketers from sending unsolicited fax advertisements without prior express written consent.
- Is your fax an advertisement? The answer is not always so clear.
- Do you have an established business relationship with the recipient? Then you might only need prior express consent (e.g., company provided you with its fax number).
- Are you sending a fax to a dedicated fax machine? Only faxes sent to fax machines are subject to the TCPA law's restriction. Faxes sent by email are exempt.
Hire experienced telemarketing attorneys.
The foregoing questions and guidance are among the simpler examples of potential TCPA liability landmines. Keeping up with all of the changes in telemarketing law is more than a full-time job. Serial plaintiffs and the plaintiffs' bar continue to push the boundaries of what TCPA law means, well beyond the law's original purpose. One mistake could saddle a telemarketer with tens of thousands, or even hundreds of thousands, of dollars in damages.
Take the guess work out of the equation and hire an experienced team of telemarketing attorneys. The attorneys at Klein Moynihan Turco have years of telemarketing law experience. They can help your business navigate the nuanced world of the TCPA, help keep your business TCPA compliant, and defend your business in TCPA litigation.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
