Quick Guide to the Top 10 TCPA Misconceptions
The Telephone Consumer Protection Act (TCPA) is a complex law, made even more complex by broad interpretive statements from the Federal Communications Commision (FCC) and wildly differing rulings from the federal circuit courts. The definition of an automatic telephone dialing system (ATDS or “auto-dialer”) is largely debated, and the use of which is often a big component in many TCPA class action suits. The TCPA is a moving target and a real life nightmare for companies who are just trying to be compliant. This federal statute is often misunderstood and mistaken beliefs have begun to turn into prevailing myths.
Consider these common misconceptions:
1. Text Messages Don’t Apply
Many marketers do not realize that the TCPA applies to automated marketing text messages. In fact, the same requirements and restrictions placed on telemarketing calls also apply to text messaging. To make a call or a text to a wireless number using an ATDS you need express written consent. This knowledge gap has made text marketing one of the hottest areas of TCPA litigation.
2. If a Wireless Number was Reassigned You Can Claim “Safe Harbor”
It is your responsibility as a company to identify and remove reassigned numbers from your data. In 2015 the FCC introduced a very limited Safe Harbor that only protects the first call made to a reassigned number. In 2018, the D.C. Circuit stated the the FCC’s Safe Harbor rule was arbitrary and capricious and therefore invalid. Later in 2018 the FCC announced a new Safe Harbor rule that, when implemented, will allow callers to claim Safe Harbor if they can prove they are using an officially recognized reassigned number database. As of yet no official reassigned number data base has been created, and may still be years out from realization.
3. Ported Landline Numbers are Not Considered Wireless Numbers
Many wireless carriers allow consumers and businesses to keep their phone number when they transition from a landline to a wireless phone plan. Regardless of the origin of the phone number, if it is associated with a wireless carrier and a wireless phone rings when you make a call, it’s a wireless number and it subject to all applicable laws.
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