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Due to the growing ability and need to reach consumers through telemarketing technology, businesses (and their call centers) face the growing risk of contacting consumers without the proper consent of TCPA.

the Telephone Consumer Protection Act (LPTC) protects consumers from receiving certain unsolicited telemarketing calls, faxes, pre-recorded calls, auto-dialed calls and text messaging. Businesses that violate TCPA regulations may face lawsuits from consumers. These can become extremely costly in the case of class actions, which often involve multiple violations against thousands of consumers.

To help businesses understand how to advertise to consumers while still complying with the TCPA, we’ve provided this Telemarketer Guide to TCPA Consent.

Introduction to TCPA Consent

As we detailed previously, under the TCPA, consumer consent must be obtained by businesses who wish to make robocalls and send text messages to consumers. The consumer’s consent to receive such solicitations must be unambiguous, which means that the consumer must receive a “clear and visible disclosure” that he / she will receive future calls / text messages which will provide automatically composed and / or pre-recorded telemarketing messages; that his consent is not a condition of purchase; and it must designate a telephone number to which it must be reached.

What the TCPA requires telemarketers to disclose

Beyond focusing on promoting a product or service, under the TCPA, advertisers must approach and communicate with consumers respectfully and within the law.

the Telemarketing Selling Rule requires advertisers to provide specific information, using certain procedures, before a consumer pays for the goods or services involved in an offer to sell, for calls both to and from consumers.

At a minimum, each telemarketer must provide their name, as well as the business name or name of the organization for which they are communicating with consumers. Telemarketing calls can only be made between 8 a.m. and 9 p.m. (depending on the recipient’s local time), with additional day and time restrictions in various states.

In many states, it is necessary to end contact if a consumer states that they are not interested in a product or service that the telemarketer is promoting. This is called the “rule of no rebuttal”. Once told to stop, the telemarketer cannot continue to try to convince the consumer to buy the offending product or service. Other states allow a rebuttal before the telemarketer needs to end contact.

If a business records its telemarketing calls, which is recommended, a clear notice should be given to the consumer at the start of each call that it will be recorded for quality assurance purposes and that the recording will be kept as a trace. of the transaction.

For pre-recorded messages, the advertiser must provide the company’s phone number, which must be a toll-free number. In addition, pre-recorded calls must also include an automated and interactive unsubscribe mechanism allowing the consumer to make a no-call request.

The importance of express consent under the TCPA

Before you even contact consumers, you will need their express consent to do so.

The prior express written consent of each consumer is required under the TCPA for telemarketers to solicit consumers through automatically dialed and / or pre-recorded calls and SMS to mobile phones (and for pre-recorded and artificial voice calls to residential landlines) for marketing purposes.

Obtaining express consent involves providing consumers with clear and unambiguous disclosure that:

  • They will receive future calls that will deliver auto-dialed and / or pre-recorded telemarketing messages on behalf of a specific advertiser.
  • Their consent is not a condition of purchase.
  • They must designate a telephone number to be reached, which must not be pre-filled by the advertiser in an online form for example.

E-SIGN compliance satisfies the signature requirement, which means that electronic or digital forms of signature are acceptable (that is to say, agreements obtained by e-mail, website form, SMS, pressing a phone key or voice recording).

Proof of written consent provided via the Internet includes, but is not limited to, pages on the website that contain the consumer’s language and consent fields, associated screenshots of the consent web page as viewed by the consumer where the phone number was entered, the complete data records submitted by the consumer (with time stamp), as well as the applicable consumer IP address.

Communications exempt from consent requirements

Purely informational calls and contacts for non-business purposes are exempt from certain TCPA regulations. This includes contact with a consumer’s mobile operator, school, health care provider and for emergency purposes.

There are specific exemptions for each means of telephone communication as defined by the TCPA, including:

Calls

  • Which are manually dialed by a live person and do not include pre-recorded messages.
  • Carried out by or on behalf of a tax-exempt non-profit organization.

Texts

  • Which are dialed and sent manually.
  • For appointment reminders or prescription status.
  • Sent by parcel delivery services.

What is the DNC list and how does it relate to the TCPA?

the National Do Not Call Register (DNC) pushes consumer rights a step further. Through the DNC registry, telemarketers can access a list of phone numbers belonging to consumers who actively want limit telemarketing calls that they receive.

DNC regulatory violations

  • Make a telemarketing call to someone whose number is listed in the DNC register, unless the caller is entitled to one or more of the exemptions explained below.
  • Interfere with a person’s right to be entered in the registry.
  • Use the registry for any purpose other than to comply with applicable regulations.

DNC exemptions

The DNC regulations do not apply to advertisers in the following situations:

  • If they have express written consent to call the consumer.
  • If he has an established commercial relationship with the customer (as long as the consumer has not requested to be registered on the seller’s internal DNC list), if the customer has performed one of the following actions:
    • Purchased, leased or leased goods or services from the seller, within 18 months of the telemarketing contact.
    • Inquired or requested for goods or services from seller within 3 months of telemarketing contact.
  • The advertiser is covered by the DNC “Safe Harbor”. The Safe Harbor covers situations where a consumer has been mistakenly called and this violation is excused when the advertiser has implemented all of the following as part of their normal business practices:
    • Establish, implement and enforce internal written procedures of the DNC.
    • Maintain an internal DNC list.
    • Train its staff and subsidiaries in these procedures.
    • Synchronize its call lists with an updated version of the National DNC Register every 31 days.

TCPA penalties

The TCPA provides for actual damages or statutory damages ranging from $ 500.00 to $ 1,500.00 per unsolicited call / text message. To determine the final amount of statutory damages to be awarded, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.

Since telemarketing and text messaging campaigns often involve thousands and in some cases millions of calls / text messages, the potential penalties claimed under the TCPA can escalate very quickly. In addition, companies that do not comply with the TCPA may be faced with consumer class action litigation.

How to protect your business

In the event of a dispute over consent, the trader bears the burden of proving that a clear and visible disclosure has been provided and that the consumer has unambiguously consented to receive automated calls or text messages to the number he has specifically provided.

It is good practice for marketers to get used to obtaining written consent from consumers as soon as possible. Not only will businesses be required to do so from October, but having written consent provides a tangible and strong defense that adequate consumer consent has been obtained. Additionally, it is recommended that records of each consumer’s consent be retained for at least four (4) years, which is the federal default limitation period for bringing an action under the TCPA.

Learn more about TCPA consent

This guide is intended to provide a general overview of when TCPA consent is required. Please review your specific situation with your legal advisor.

This guide was originally published on July 15, 2020 and updated on August 5, 2021.

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TCPA for Dummies

What is the scope of an exclusion under the TCPA Act?

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.