The best practices for avoiding Telephone Consumer Protection Act (TCPA) violations and the attendant lawsuits are as follows:
Make Sure You Have Clear Consent
In order for a court to proceed with a class action, the class must first be certified. When it comes to the TCPA, if the defendant can provide evidence of consent procedures, and prove consent for the individual plaintiff, the class as a whole, or a subset of the class, then the class certification may be denied.
Make Sure You Have Strong Arbitration Language
It is critical in consumer contracts to draft clear arbitration agreements, broad enough to cover any and all future disputes. Failure to do so could result in denial of arbitration or even class action lawsuits. When drafting your arbitration clause, be sure to include a detailed opt-out provision that contains specifics on how and where a consumer can opt out.
Have a Well Written Consent Clause
If you ever need to contact a consumer with an autodialer or pre-recorded voice, make sure your contract includes a well written TCPA consent clause. The clause should include language that supersedes any existing opt-in or opt-out, clearly indicate the methods of consent revocation, clearly indicate the methods by which you may contact them, and include any third parties or affiliates that may contact them as it pertains to the contract.
Use Your Dialer Technology Correctly
If you’re calling or texting a wireless number, the TCPA mandates that you must have express written consent to place those calls or texts using an Automatic Telephone Dialing System (ATDS). The Federal Communications Commission (FCC) defines an ATDS as equipment which has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The Supreme Court's decision in Facebook v. Duguid may limit which kinds of devices fit this definition but it does nothing to change the ATDS restrictions or the penalties that come with violating them.
Document Everything, Follow the Rules, Be Able to Prove It
The courts may allow you to claim a “Safe Harbor Defense,” a strategy which allows companies to show proof that they have done all the things they can to be compliant with the TCPA. Those things include but are not limited to:
- Having written policies and procedures in place and training employees to follow them.
- Maintaining an internal do not call list
- Scrubbing against the National Do Not Call (DNC) Registry
- Scrubbing against the individual state DNC registries
- Checking your data for reassigned numbers