Posted by Chris Alarie on Mon, 11/16/2020 - 10:05
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In a way, this is the fundamental question underlying the entire enterprise of conducting telephone solicitations: what is TCPA compliance? It is a simple question with a complicated answer. And the callers who aren’t able to understand that answer may find themselves at the mercy of the litigators and professional plaintiffs out there hunting for multimillion dollar paydays.
This article will explain the main provisions of the Telephone Consumer Protection Act (TCPA) with which callers must comply, outline why compliance is so important, and offer some best practices for compliance.
Provisions of the TCPA
The main provisions of the TCPA are as follows:
Calling Time Restrictions
Companies can contact residential consumers only between 8:00 AM and 9:00 PM (recipient’s time zone).
Automatic Telephone Dialing Systems (ATDS)
The TCPA restricts autodialed telemarketing calls to cell phones and other devices where the recipient might be charged for the call without written consent, and non-marketing autodialed calls without prior express consent.
The TCPA does not allow the use of an artificial or prerecorded voice to be used to call a residential landline or wireless number for marketing purposes without prior express written consent. The TRACED Act, passed in 2019, introduced further regulations for the TCPA’s prohibitions related to prerecorded calls.
Among other things, the TCPA requires the caller to provide their name, the name of the company on whose behalf they are calling, and a telephone number or address which can be used to contact them again.
National Do Not Call (DNC) Registry
Telemarketers are required to suppress phone numbers on the National Do Not Call Registry. Remember that some states have their own local DNC lists as well, in addition to the federal list.
Internal Do Not Call List
Companies are required to maintain an internal DNC list of consumers who asked not to be called or texted.
Consequences of Non-Compliance
The primary reason TCPA compliance is so imperative for telemarketers is because non-compliance carries the risk of damages that can sometimes reach as high as tens of millions of dollars. The exact specifics of how this came to be in terms of court opinion and Federal Communications Commission (FCC) regulatory rulemaking is a story for another time. But the current interpretation of multiple statutory elements of the law make for a perfect storm of almost unfathomably punitive consumer litigation.
Strict Liability Statute
The TCPA is a strict liability statute, meaning a violation is not contingent upon fault or criminal intent. In fact, as explained below, the law actually has a multiplier for willful damages. In practice, this means that many TCPA violators are generally good faith actors who have made a mistake or, perhaps, made a bad decision in terms of working with another company who violates the law, leaving the hiring company vicariously liable.
Uncapped Statutory Damages
The penalties for running afoul of the TCPA are levied on a per-violation basis. The standard penalty is up to $500 per violation, with those penalties trebled up to $1,500 per violation for knowing or willful violations.
While these fines are relatively small compared to those exacted by other telemarketing regulations—the fine for violating the National Do Not Call Registry, for example, is $43,280 per violation—they can add up to truly astounding sums due to the fact that the TCPA allows for uncapped statutory damages.
For example, earlier this year, an appeals court affirmed a jury verdict in a TCPA class action against a multi-level marketing company. The defendant was found to have made more than 1.8 million calls that violated the TCPA’s ATDS regulations, resulting in a penalty of $925 million.
Private Right of Action
The TCPA contains a private right of action, which means a private individual is legally entitled to enforce the statute. The original intent was for this right to be enforced in small claims court. In fact, Senator Fritz Hollings, who originally sponsored the TCPA in 1991, highlighted this aspect in a speech on the Senate floor, saying, “The … bill contains a private right of action that will make it easier for consumers to recover damages from receiving these computerized calls. … Small claims court or a similar court would allow the consumer to appear before the court without an attorney.”
In the early years of TCPA litigation, many federal circuit courts told plaintiffs there was no jurisdiction to hear the cases in federal court. However, in the 21st century, that attitude toward enforcing TCPA litigation through small claims courts has been weakened and, as a result, more individual lawsuits are being filed for large dollar amounts in federal courts, especially in the form of class actions.
Having explained what TCPA compliance is and why it is imperative to remain in compliance, that necessarily leads to the obvious question: how do callers stay in compliance with the TCPA? While far from a comprehensive solution, these best practices should help most callers remain in compliance with the TCPA.
Don’t Call Known Litigators and Serial Plaintiffs
The easiest way to avoid a lawsuit is to not contact the people who are most likely to sue. TCPA litigators and professional plaintiffs infiltrate your data by filling forms on your lead generation websites and finding ways to get independent agents to contact them. The best defense is to remove these predatory individuals from all calling lists before reaching out.
Practice Consent Guidelines
If your business uses an autodialer, it is essential to maintain best practices for consent before conducting any calling campaign. This includes having proper procedures for tracking consent (and the revocation of consent). But this also means simply knowing which kinds of consent you need for which kinds of calls.
Maintain an Internal Do Not Call List & Policy
You are required by law to keep a company specific Do Not Call list. You should immediately honor the requests of consumers who ask to be placed on your internal Do Not Call list. You are also required by law to keep an updated internal Do Not Call policy and must provide such policy to your clients upon request.
Identify Wireless and VoIP Numbers
Obtaining the required prior consent starts with knowing the numbers for which you need it and the numbers for which you don’t. Because consumers may incur a charge as a result of being contacted on their wireless or VoIP number, calling or texting those numbers could result in a TCPA violation without the required consent.