TCPA SolutionTCPA Overview

Background

The Telephone Consumer Protection Act (“TCPA”) of 1991 places restrictions on telemarketing practices, such as the use of automated dialing equipment, prerecorded messages, and text messages. The TCPA currently prohibits marketers from using an autodialer or artificial or prerecorded voice to place calls to a cell phone unless the marketer has obtained prior express consent from the consumer.

TCPA Regulation Changes - Effective October 16, 2013

As of 10/16/13, telemarketers will be required to have express written consent to place calls to a cell phone from an autodialer.

This means that the person receiving the call must sign a "clear and conspicuous disclosure" :

  • A written agreement bearing the signature of the person called that clearly authorizes the seller to deliver messages using an autodialer, and the telephone number to which such messages may be delivered
  • The consumer must not be required to sign the agreement as a condition of purchasing a product
  • "Clear and conspicuous" is defined by the FCC as
    • "A notice that would be apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures."

How TCPA Affects You

  • On October 16th, enforcement of the new rules will begin
  • Consumers will be able to sue callers under the changed regulations on this date, and class action lawsuits can seek damages anywhere between $500 - $1500 per phone call
  • If you are calling leads using an autodialer, you hold the burden of proof in the event of a lawsuit

How to Protect Yourself

  • Be proactive: You will need to determine the language of the disclosure that will be shown to consumers in your lead funnel
    • If you are a lead buyer, you will need to work with your providers to make sure they are using disclosures that you have approved
    • Use this checklist to evaluate potential TCPA disclosure language
  • Know before you call:
    • Before you call a lead using an autodialer, you should have definitive proof that the consumer saw one of your approved disclosures and consented to receiving a call
    • As a lead buyer, you should know what content was displayed to the consumer from each particular event, and how conspicuously it was displayed
    • Make sure that the phone number you are calling is actually the phone number of the person who consented to be called
  • Maintain records of your compliance:
    • In the event that you are named in a TCPA compliance lawsuit, you will need to have proof that the consumer who received the phone call in question gave express written consent