Often the most punitive aspects of telemarketing regulations are reserved for autodialed calls made without proper consent. This is a significant component of the federal Telephone Consumer Protection Act (TCPA) as well as state-level laws such as the Florida Telephone Solicitation Act (FTSA) and Oklahoma Telephone Solicitation Act (OTSA).
Generally, there are two levels of consent, with different sorts of calls requiring one or the other. The lesser threshold of consent is express consent while the higher threshold is express written consent. There is also something colloquially known as implied consent but its role in telemarketing compliance is a bit more informal.
Express Written Consent
Under the TCPA, express written consent is required for telemarketing calls made to cell phones using an automatic telephone dialing system (ATDS), as well as prerecorded calls to both landlines and cell phones. The written consent must be obtained "clearly and conspicuously" and must include certain disclosures, such as the fact that the person is agreeing to receive marketing calls and messages.
To properly acquire express written consent, businesses should ensure that the consent is voluntary and not a condition of purchasing a product or service. They should also keep a record of the consent, including the time and date it was given, the phone number and name of the person who gave the consent, and the specific disclosures that were provided.
Express Consent
Express consent is a lower level of consent and can be obtained orally or in writing. This level of consent is required for non-marketing calls made to wireless and VoIP phones, regardless of what type of dialer is used. It should constitute an agreement, written or oral, clearly indicating consent to receive calls at a particular phone number.
For non-marketing calls, if a consumer knowingly provides a phone number to a company in the normal course of business, without conditions, express consent can be implied so long as the messages closely relate to the purpose for which the number was originally provided. Although it is not expressly defined in any relevant telemarketing law, this sort of implied consent has been successfully used in these limited circumstances.
Conclusion
Understanding the different levels of consent required under telemarketing regulations is essential to avoid potential penalties and lawsuits. Obtaining proper consent is not only a legal requirement but also a good business practice to build trust and maintain a positive reputation with customers. By following the guidelines for obtaining express written and express consent, businesses can ensure compliance with the TCPA and other telemarketing laws while continuing to effectively reach their target audience.
For more information on TCPA consent, click here to download a free guide.
