It was a clever lawsuit: suing the government and challenging the TCPA (Telephone Consumer Protection Act) under the auspices of the First Amendment. The heart of the case—the government-held debt collection exemption is a content-based restriction on speech—will have telemarketers rejoicing: no more TCPA nuisance lawsuits! ”Gentlemen… start your dialers!” Wait… stop… what have we done?
Instead, SCOTUS (Supreme Court of the United States), the highest federal court, the “court of last resort”, not only found a way to sever the exemption from the TCPA, but then went on to say that robocalls are bad and the TCPA is good and very popular. Holy crap. Well what does this mean?
It means “Gentleman… start your lawsuits!” SCOTUS, in its decision, referred to Congress working hard to make a great and popular law. Apparently SCOTUS loves the TCPA. Here’s another newsflash: the states’ Attorneys General (yes, all of them) sent a letter to an industry trade group saying they intend to aggressively step-up enforcement of telemarketing regulations. So that means both state and federal regulations. Despite the fact that the government ostensibly lost this case, so did the other side.
What can you do? Strike that. What do you NEED to do? The first is that you need, really need, a Risk Assessment to review all applicable federal and state regulations. Then, we need to review your policies and procedures, as well as controls and documentation regarding customer engagement. Then let’s make sure any vendors or technology in your ecosystem can’t spread their liability to you. We also need to make sure you have the appropriate compliance tools in place, including procedures for obtaining and documenting proper consent, Do Not Call adherence, identifying wireless numbers, affirming that the person you are calling is the same one that owns that phone, and many more. And, as always, don’t forget to scrub for litigators… the Supreme Court just gave them the tools to make themselves very, very rich. Call me now before you have to call me. The wolves are at the gate. They are hungry and they are coming for you.
Further Reading
