Best Practices: How businesses can communicate with individual consumers without violating the Telephone Consumer Protection Act

Every business wants to share product or service updates with their customers to maintain relationships,build brand loyalty, and to attract new customers. But when does friendly solicitation cross the line into illegal behavior?

This article covers some (but definitely not all) kinds of communications businesses are restricted from making via phone, text message, and fax. We’ll lay out details of the Telephone Consumer Protections Act (TCPA) and give you best practices to create your communications policy with customers, potential customers, and users of your services. We’ll also describe the harsh penalties businesses can expect if a company or organization doesn’t comply.

You don’t have to be a telemarketing firm or large company to violate the TCPA

You might be thinking, “My business doesn’t spam anyone with telemarketing phone calls or texts, so I don’t need to worry about lawsuits or regulators.”  However, the annoying, scam-filled, unsolicited phone calls and text messages we commonly associate with spam are not the only communications prohibited by the TCPA.

The law that covers telephone communications between businesses and consumers restricts much more than many business owners realize.[1] Even inadvertently violating the TCPA can lead to serious consequences. Not only can consumers file a lawsuit against your company (either individually or by class action), but so can government regulators. Depending on the severity of the case, violations of the TCPA can cost businesses tens of millions of dollars in fines and damages. Not complying with the TCPA could be one of the most expensive decisions a business makes.

It’s not just the usual suspects being sued, like telemarketers and deep pocketed banks. Businesses from social media services to doctors’ and dentists’ offices have had enforcement actions against them as well. The FCC, an individual, group of individuals in a class action, and state agencies or attorney generals can all bring a claim against any business that violates the TCPA.

How this guide is set up

First,  we’ll explore what the TCPA covers and its requirements in the “Background” section. Then, we’ll discuss the potential consequences of an enforcement action in our “Risks of Non-compliance” section. Last, we’ll describe business practices you can implement to assist with compliance and what to do if a legal claim does arise in the “Best Practices” section. We’ll break those best practices down into what steps might be prudent to take without any budget, and what steps may be prudent if compliance is a top priority.

Remember that this guide is about what it takes to comply. While you design your business practices, remember that even complying phone calls, texts, and other communications like email that are perceived as spam can affect your bottom line as public relations disasters or lost customers and users. Meeting and exceeding standards protecting consumer privacy can be good for business, as well as a way to reduce liability. While it doesn’t completely limit liability, one quick takeaway is that express written consent from consumers you plan to communicate with is always advisable. But there’s more to learn to protect your business, so read on. This guide can be read out of order, so feel free to skip to whatever sections are most useful to you:

1. What is the TCPA and what does it cover?

2. How the nature of the call affects whether businesses are allowed to make it

3. Compliance best practices

What is the TCPA and what does it cover?

The TCPA was initially enacted in 1991 to shield consumers from harassing telemarketing calls and faxes.

The TCPA attempts to protect  consumer privacy by setting rules for when companies can contact consumers with both telemarketing and non-telemarketing calls. Businesses attempting to save money and time through using automatic telephone dialing systems (ATDS)[2] and pre-recorded phone calls or mass faxes and texts need to be especially wary because the rules multiply when you use those tools. The TCPA also established a National Do-Not-Call registry where individuals can sign up to limit telemarketing calls.

Not only is the TCPA coverage broad, but also the FCC continuously updates its regulations and interpretations to broaden the scope in light of new technology. The interpretation has extended to cell phone text messages as well.[3]

Other restrictions depending on the nature of the communication, generally

Other restrictions that your business may need to comply with differ based on:

1. The type of communication you’re initiating

In other words, are they calls to a mobile phone, a residential landline phone, fax or text advertisements?

2. Whether you’re using an auto-dialer and whether the call is made live (by a real person) or pre-recorded

Calls made using an auto-dialer are more stringently governed than those made by a person. Artificial or prerecorded voice calls are generally more stringently governed than live calls.

3. Whether the call is a “telemarketing” call or whether it’s non-commercial

The TCPA treats telemarketing and non-telemarketing calls differently, obviously requiring stricter permissions for the commercial calls. That said, the line between what is and isn’t “commercial” is not always obvious and this is an area that leads to litigation.

4. Whether the call was or wasn’t consented to

Finally, the TCPA treats consented communications vastly differently than unconsented communications or communications for which the consumer has previously revoked consent.

The TCPA treats types of calls differently, which impacts the type of consent you need from consumers

There are certain subtleties of the rule that may not be immediately obvious. For example, the TCPA treats telemarketing and non-telemarketing calls differently, obviously requiring stricter permissions for the commercial calls. Moreover, certain types of calls require a specific type of consent. Understanding these two concepts is key to understanding what your options are as a business in order to comply with the TCPA.

What’s the Difference between Telemarketing and Non-Telemarketing Calls?

The practical differences between telemarketing and non-telemarketing calls can be unclear and are typically fact-specific. As a general matter, any call or message that involves or presents an advertisement, or urges the purchase or investment in property, goods or services, will be deemed telemarketing.

What sometimes creates a huge hurdle for defendants is that “dual purpose” calls—calls that include both informational and promotional components--will be deemed telemarketing calls subject to the heightened consent requirements.[4] Non-telemarketing calls are calls that are purely informational and have non-commercial messages.

How to Properly Get Consumer Consent

If you plan to regularly communicate directly with consumers or customers over phone, text, or fax, you should ensure you have the kind of consumer consent required by the TCPA.

A good rule of thumb is that the TCPA requires prior express written consent for the vast majority commercial contact by phone (especially when calling or texting mobile phones), while non-commercial calls or texts usually only require prior express consent or even none at all.

Businesses that get prior express written consent from a customer typically can contact the customer on their mobile phone as well as their landline or fax machine with an ATDS (automatic telephone dialing system) or an artificial/prerecorded voice call.

For prior express written consent, the law requires an agreement between you and the consumer that:

  1. Is a written agreement;
  2. Is signed by the consumer;
  3. Clearly authorizes the seller (you) to deliver advertisements or telemarketing messages using an ATDS or an artificial or prerecorded voice
  4. Contains the telephone or facsimile machine number(s) to which the signatory authorizes such advertisements or telemarketing messages to be delivered; and
  5. Have a clear and conspicuous disclosure informing the person signing that:
    1. By executing the agreement, such person authorizes the seller to make telemarketing calls using an ATDS or an artificial or prerecorded voice; and
    2. The person is not required to sign the agreement as a condition of purchasing any property, goods, or services.[5]

Consumer consent is a key affirmative defense under the TCPA, and by having a physical or digital record, you can protect yourself for any potential legal dilemmas.[6]

Businesses that communicate with their customers in any way via call, SMS, or fax should (a) thoughtfully enact policy to ensure compliance with the TCPA and (b) hold training for managers making day to day decisions about communicate strategy. This is necessary to safeguard your business from legal threats and potential reputational harm.

How the nature of the call affects whether businesses are allowed to make it

A gold standard for avoiding TCPA liability is getting express written consent for all communication (as we explain in the “best practices” section). But there are varying degrees of consent that are required depending on whether (1) the call is telelmarketing or non-telemarketing, and (2) the call is made to a mobile or residential phone.

  1. Are you Making a Non-Telemarketing Call or Text?
    1. Calls to Mobile Phones (i.e. Wireless or Cellular Phones). (This includes all calls and text messages, including automated calls using ATDS, artificial or pre-recorded voice calls, debt collection calls, and informational calls.)
      1. You need prior express consent, but the consent may be either oral or written. [7]
    2. Calls to Residential Phones (i.e. Landlines).
      1. TCPA consent rules do not apply (even if it is an artificial or prerecorded call or an automated call), but Do-Not-Call rules do. Notably, even if an artificial or prerecorded voice call is made for a commercial purpose (but does not include advertisement or constitute telemarketing), you do not need consent – however, the identification information requirements still apply (see Artificial or Prerecorded Voice Call Requirements below).[8]
  2. Are you Making a Telemarketing Call or Text?
    1. Calls to Mobile Phones
      1. You need prior express written consent. [9]
    2. Calls to Residential Phones
      1. Is It an Artificial/Prerecorded Voice Call? You need: (A) prior express written consent,[10] (B) include the identification information every artificial or prerecorded voice call must have (detailed below in Artificial or Prerecorded Voice Call Requirements), and (C) opt-out options. The opt-out options include providing an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information. When the called person elects to opt out using such mechanism, it must automatically record the called person's number to the seller's do-not-call list and immediately terminate the call. When the artificial or prerecorded voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person's number to the seller's do-not-call list.
      2. Is It Not Artificial/Prerecorded Call? The TCPA consent rules do not apply. Even if it was autodialed using an ATDS, as long as it is not prerecorded, consent is not required. However, you still need to comply with Do-Not-Call rules if the calls you’re making are live solicitation calls – see Do Not Call Registry & List Requirements.[11]
  3. Fax Advertisements.[12] Solicitations or ads sent over fax are strictly regulated with numerous requirements under the TCPA regulations. Make sure you read this section carefully as faxed advertisements that violate the TCPA can lead to huge statutory damages: one business had to dole out $22.4 million dollars in a class-wide summary judgment.[13]
    1. Are You Faxing an Unsolicited Advertisement? You must have (i) an Established Business Relationship with the Recipient, (ii) obtained the receiving fax number voluntarily by the Recipient, (iii) include a Notice within the advertisement that informs the recipient of the ability and means to avoid future unsolicited advertisement;[14] and (iv) include Identifying Information.
      1. Established Business Relationship: The statute defines this as a “prior or existing relationship formed by a voluntary two-way communication” between your business and the Recipient (a business or residential subscriber), based upon an inquiry, application, purchase or transaction by the Recipient regarding your offered products or services. The relationship must not have been previously terminated by either party.[15] Note that opting out of faxed solicitations terminates the relationship.[16]
      2. Recipient Voluntarily Provided Fax Number: This means either you obtained the number directly from the Recipient, within the context of your established business relationship; or you obtained the fax number via a directory, advertisement, or site on the Internet to which the Recipient voluntarily agreed to make available its facsimile number for public distribution. If you got the fax number from the Recipient's own directory, advertising, or website, it’s presumed that the number was voluntarily made available for public distribution, unless it is explicitly stated that unsolicited advertisements are not accepted at the specified fax number. If you obtained the number in other ways, you must take reasonable steps to verify that the Recipient agreed to make the number available for public distribution.[17]
      3. Notice. The advertisement must contain a notice that informs the recipient of the ability and means to avoid future unsolicited advertisements. The notice must:
        1. Be “clear and conspicuous,” meaning it is apparent to the reasonable consumer, separate and distinguishable from the advertising copy or other disclosures. Specifically, the notice must be placed at either the top or bottom of the facsimile.[18]
        2. Be on the first page of your advertisement;
        3. State that the recipient may make a request to the sender of the advertisement not to send any future advertisements to a telephone facsimile machine or machines and that failure to comply, within 30 days, is unlawful (if the request meets all the requirements below);
        4. Set forth the requirements for an opt-out request, as follows;
          1. The request must identify the telephone or fax number(s) to which the request relates;
          2. The request must be made to the telephone number, facsimile number, Web site address or email address identified in the fax advertisement; and
          3. The person making the request has not, subsequent to such request, given express consent to the sender (i.e. you) to fax advertisements to them.[19]
        5. Include a domestic contact telephone number and fax machine number for the recipient to send an opt-out request to the sender. Note if neither number is toll-free, you must include a separate cost-free mechanism (such as a Web site address or email address) by which the Recipient can send an opt-out request. (A local telephone number may also be considered a cost-free mechanism so long as recipients are local and will not incur any long distance or other separate charges.); and
        6. The numbers and mechanism above must permit an individual or business to make an opt-out request 24 hours a day, 7 days a week.[20]
      4. Identification Information. The TCPA requires you to mark all fax advertisements in a margin at the top or bottom of the first page (or each individual page) with: the date and time the fax was sent; an identification of the business or person sending the message; and the telephone number of the sending machine.[21]
    2. Are You Faxing a Solicited Advertisement? You still need to provide a notice with all the same requirements listed above within your fax as well as the identifying information.
      1. Solicited? Solicited advertisements mean having “prior express invitation or permission” by the recipient, oral or written.[22]
      2. Notice. See above for mandatory requirements.
      3. Identifying Information. See above for mandatory requirements.

Artificial or Prerecorded Voice Call Requirements[23]

For all artificial or prerecorded voice calls, regardless whether telemarketing or not, mobile or residential, the following is required.

  1. The beginning of the message must state the identity of the business or individual calling. (If a business is responsible, you must identify it by its registered name with the State Corporation Commission or comparable regulatory authority.)
  2. During or after the message, state clearly the telephone number of the business (it must not be a 900 number or have charges beyond local or long distance transmission charges).

If the call is telemarking to residential telephone subscribers, you must also permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign.

Notable Exceptions

Tax-exempt non-profit organizations. If you are a tax-exempt non-profit organization, good news: you are exempt from many of the consent requirements. For telephone calls made for advertising or telemarketing, using an ATDS or an artificial or prerecorded voice, you only need prior express consent of the called party (instead of written).[24] For non-telemarketing calls using an artificial or prerecorded voice, you don’t need any consent.[25] You are exempt from tracking and keeping to a 3% maximum “abandonment” rate as well as maintaining an internal Do-Not-Call list.[26]

Emergency purposes.[27] Any telephone call regardless of type (e.g. live, prerecorded, ATDS, mobile, residential, etc.) is exempt from these regulations and rules if it is for emergency purposes. A call is for emergency purposes if the calls are made necessary in any situation affecting the health and safety of consumers.

Delivering a “Health Care” Message. Delivering a “health care” message made by, or on behalf of, a “covered entity” or its “business associate,” as those terms are defined in the HIPAA Privacy Rule, means HIPPA rules will govern instead of TCPA rules.

Do-not-call list exceptions. In addition to non-profits, political and survey organizations are exempt from having to utilize the Do-Not-Call list.

Basic Rules Summarized

Non-Telemarketing Calls (including texts):

  • To Mobile: Prior express oral or written consent required for any type of call or text.
    • Artificial/Prerecorded Calls: Must include identity and telephone number of business.
  • To Residential: No consent needed, but you must respect the Do-Not-Call rules.
    • Artificial/Prerecorded Calls: Must include identity and telephone number of business.
  • Suggestion: While non-telemarketing calls don’t require use of the national Do-Not-Call registry, if the communication does not communicate critical information or you have other methods available to you to reach the individual (say an authorized email)

Telemarketing Calls(including texts): You must maintain an internal do-not-call list and procedures for its upkeep if you wish to make any telemarketing calls.

  • To Mobile: Prior express written consent required for any type of call or text. You must respect the Do-Not-Call rules
    • Artificial/Prerecorded Calls: Must include identity and telephone number of business.
  • To Residential:
    • Artificial/Prerecorded Calls: You must have prior express written consent, include identity and telephone number of business, and opt-out options (via an automated, interactive mechanism)
    • All Other Types of Calls: No consent needed, but you must respect the Do-Not-Call rules.

Fax Advertisements:

  • Unsolicited: You must have (1) an established business relationship, (2) obtained the fax number voluntarily from the recipient, (3) include a notice which includes opt-out instructions, and (4) include identification information on the fax.
  • Solicited: You must have (1) prior express consent (oral or written), (2) include a notice with the opt-out instructions, and (3) include identification information.

Never Call or Text:

  • Any residential telephone number subscriber before the hour of 8 a.m. or after 9 p.m. (called party's local time);
  • A residential telephone number on the national do-not-call registry (unless exempted as political, non-profit, or survey call);[28]
  • A phone number of your internal do-not-call list;
  • Emergency numbers (e.g. 911, poison control center, fire protection, etc.); and
  • Guest or patient rooms in hospitals, health care facilities, or senior homes.

RISKS OF NON-COMPLIANCE

What kind of legal trouble can occur if you don’t comply?

There are various types of legal consequences that can arise if you don’t comply with the TCPA, from administrative actions to lawsuits. Not only can these end with the non-compliant party having to pay a significant amount of money to the aggrieved party, but it can also cost a lot of time, money and resources just to defend a TCPA action.

Four different types of plaintiffs can bring a cause of action against you for violating the TCPA: (1) The FCC; (2) an individual; (3) a group of individuals in a class of action; and (4) state agencies / attorney generals.

Each has their own reasoning for filing suit. For example, government actors may be inclined to use their enforcement power when large amounts of their constituents are affected or complain about a specific businesses activity within their jurisdiction. Plaintiff’s lawyers filing class actions may target companies with similar violations across a wide number of victims because those cases could be the easiest to combine into a “class” and win a suit for a large amount of people and substantial money damages.

Below are examples of the types of cases that might arise when defendants are found to be violating the TCPA, and the potential types of results if you lose a case against one of the above four different plaintiffs.

The FCC

The FCC can take administrative action against you and can impose civil forfeiture penalties—taking personal assets away from you, and issuing significant fines against you and/or your business.

For example, in February 2016, the FCC Issued a $1,840,000 fax fine against Scott Malcolm, DSM Supply, LLC, and Somaticare, LLC for sending 115 unsolicited advertisements to the telephone facsimile machines of 26 consumers.[29]

An Individual

An individual can seek injunctive relief to prevent certain conduct and can seek the amount of their monetary loss or $500 in statutory damages for each violation. If the business knowingly or willfully violated the TCPA, then the individual can receive up to three times their monetary loss or $1,500 in damages for each violation.

In a New York case from 1999,[30] plaintiff, an individual, received a loan solicitation telephone call from “The Mortgage Man.” Defendant admitted to making the phone call and the accuracy of the call, however was unaware of telemarketing laws. The defendant does business as “First City Mortgage.” Failing to clearly state the correct entity name in the message and the address of the business was enough to find a TCPA violation. Since defendant’s actions were not intentional or knowing, defendant was only fined $550 statutory damages for federal and state violations.

Privacy Law Class Actions

Class actions often lead to the largest penalties because they aggregate individual $500-$1500 per call actions on a mass scale: seeking redress for everyone the company has every called in a similar situation. For example, a business that called 10,000 people in the same prohibited manner could suddenly be on the hook for $5,000,000 -  $15,000,000.

Many of these cases settle even before “class certification” (where the court officially authorizes the suit to move forward) because the statutory damages can easily add up to to tens 10’s of millions of dollars. In light of the risk, often terms of a settlement are often cheaper to negotiate rather than litigating points like the meaning of “consent” or whether a communication is “commercial” under the statute.

In a class action in 2001 against Hooters (Nicholson v. Hooter's of Augusta, Inc.) the class was awarded almost $12 million for violating fax advertisement provisions of the TCPA. One of the most favorable TCPA settlements was in February 2017. An Illinois federal judge approved a $76 million settlement in a class action against Caribbean Cruise Line, for robocalling potentially millions of Americans.[31]

State agencies and Federal Attorney General

State agencies or the U.S. Attorney General’s Office can bring a civil lawsuit against you for TCPA violations. Under the TCPA, the attorney general can obtain $500 in damages per violation, and $1,500 if the violations are willful or knowing.

In 2004, California Attorney General Bill Lockyer filed a complaint against L.M.A. Marketing, Inc. for violating the national “Do Not Call” laws by pretending to conduct surveys in an effort to contact CA consumers about refinancing their mortgages.

In related actions, under the Telemarketing Act (similar but separate from the TCPA), the attorney general can obtain actual damages, restitution and other compensation on behalf of California consumers illegally contacted by the company. Under California’s  Business and Professions Code, the AG can obtain civil penalties of up to $2,500 for each violation of the telemarketing laws.[32]

Conclusion: the more calls, texts, and other communications you make, the more risk you have

TCPA damages aren’t capped and sometimes violations trigger violations of related state laws and federal regulations. As a result, financial liability increases in direct proportion to the amount of calls you make. As you can see, although even one call can create liability, more calls increase your risk of a lawsuit by increasing the viability of a case in the eyes of class action lawyers, and increasing the perceived need to take action against you by government regulators.

Compliance Best Practices

The most prudent best practice would be to talk to an attorney with expertise in the TCPA about specific actions you can take to lower your liability. That said, it is helpful to keep these straight-forward rules in mind.

Specific recommendations

Respect the National Do-Not-Call Registry (NDNCR)

Under the TCPA, you are not allowed to contact any phone numbers on the NDNCR for any telemarketing reasons, regardless of method (e.g. ADTS, etc.) unless the consumer gave express written consent.

Furthermore, telemarketers must stop calling numbers added to the NDNCR within 31 days from the date the consumer added his or her number to the registry.

It may be wise then to institute a policy of regularly cross-checking your own contact lists with the NDNCR, striking those who you have no consent for, and re-affirming consent with anyone who appears on the list who you do have consent for.

The TCPA includes a “Safe Harbor Defense” for a business or telemarketer that can show: (1) the call was an error; and (2) it met business standards such as having compliance procedures and records to avoid call violations. This potential safe harbor is another reason to institute compliance procedures.

Create and maintain your own internal do- not- call list and procedures around it[33]

The TCPA restricts you from making any telemarketing calls unless you maintain an internal do-not-call list in your company as well as procedures for using during calls.

These procedures must include:

1. A written policy, available upon demand, for maintaining a do-not-call list;

2. Informing training personnel engaged in telemarketing of the existence and use of the do-not-call list;

3. Documenting requests from people who have expressly told you to not call along with called party’s name, if provided, and their phone number in the do-not-call list, at the time the request was made. You must honor the do-not-call request within a reasonable time, no more than 30 days from the date of the request;

4. Disclosing the identity of your sellers and telemarketers during the call, including the name of the individual calling, the business, and its contact information (telephone number and address). The telephone number cannot be a 900 number or any other number for which charges exceed local or long distance transmission charges;

5. Ensuring affiliated persons or entities honor do-not-call requests when the consumer reasonably would expect them to be included given the identification of the caller and the product being advertised; and

6. Maintain do-not-call lists long-term. A do-not-call request must be honored for at least 5 years.

Thoughtfully manage your opt-out list between departments

In companies where there may be various points of contact where customers may opt out (customer service representatives, website operators, after receiving a message from the marketing department, etc.), departments need to communicate this information to one another and that information also may need to be communicated by third parties who may be making calls.

The TCPA prohibits companies and telemarketers from calling consumers who tell them “do not call me” directly to the company or during a telemarketing call. These people should be added to the company’s internal do-not-call list. Businesses have to maintain a record of consumers who asked not to be called anymore and must stop calling them within 30 days.

This requirement needs to be implemented thoughtfully because customers can revoke consent or establish that they do not want to be called essentially in any manner. This means that even if they establish that they do not want to be contacted in an unusual manner through any department of the company, you are still required to respect their opt-out.

Keep in mind that telemarketing calls are banned for certain phone numbers.[34]

You may not make any telemarketing calls to any emergency telephone line, including any 911 line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency.

Guest rooms or patient rooms of hospitals, health care facilities, elderly homes, or similar establishments are also banned.

When creating your internal “do not call” list, consider purchasing or creating a list of these numbers to add to your list or removing these numbers than may currently exist on your list.

Remember that numbers can easily be reassigned from someone who gave consent to someone who did not.

An increasingly significant issue has arisen in cases of reassigned phone numbers: when the mobile phone number of a consumer who provided prior express consent is reassigned to a consumer who does not want to be contacted.

There is a limited one-call “safe harbor” which means there will be no liability after the first call after the number got reassigned. [35] However, after that first call is made, businesses can be held liable for subsequent calls because they count as violations under the TCPA. Also, businesses that outsource their marketing to third parties can be held liable for TCPA violations from that third party.

With this in mind, it would be helpful from time-to-time to vet your list and get your contacts to reaffirm consent. If they refuse consent or don’t respond, then consider  removing them from the list.

Adhering to the “no silent call” rule (“15 second rule”)

You must not disconnect an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.[36]

Anyone managing how calls are made should integrate this into the business’s calling policies.

Adhering to “call abandonment rate” requirements.[37]

You must not abandon more than three percent of all telemarketing calls that are answered live by a person, as measured over a 30-day period for a single calling campaign. If a single calling campaign exceeds a 30-day period, the abandonment rate must be calculated separately for each successive 30-day period (or portion of that 30-day period)  that such calling campaign continues.

A call is “abandoned” if it is not connected to a live sales representative within two seconds of the called person's completed greeting. Whenever a live sales representative is not available, within two seconds after the called person's completed greeting, the telemarketer must provide both:

  1. A prerecorded identification and opt-out message that is limited to (a) disclosing that the call was for “telemarketing purposes;” (b) stating the name of the business or individual on whose behalf the call was placed; and (c) giving the business’s telephone number that permits the called person to make a do-not-call request during regular business hours (not 900 number); and
  2. An automated, interactive voice- and/or key press-activated opt-out mechanism that enables the called person to make a do-not-call request prior to terminating the call, including brief explanatory instructions on how to use such mechanism. When the called person elects to opt-out using such mechanism, the mechanism must automatically record the called person's number to the seller's do-not-call list and immediately terminate the call.

Avoid calling the same business twice with the same auto-dialer

You must not use an automatic telephone dialing system in such a way that two or more telephone lines of a multi-line business are engaged simultaneously.[38]

You should consider adding this requirement to your calling strategy.

Refrain from using technology to dial numbers simply to determine whether the phone line is a voice or fax line[39]

A prior business relationship you’ve established won’t help if you don’t have consent

Having a business relationship with a consumer was once a shield for companies, but this exception no longer exists, so don’t rely on it.

General recommendations

More general recommendations depend on how much your business communicates with customers, the nature of those communications, and the budget you can dedicate to compliance.

 

If you have no budget or time for compliance

A freelancer or small business without any time or budget for compliance may find that mass-soliciting via telephone without consent is simply not worth the risk. Of course there are many other options to reach an audience that don’t involve phone and text.

Market yourself without unsolicited calls and texts

Other avenues not regulated by the TCPA include email, PPC advertising, print, social media, influencer marketing, in-app messages, and SEO. These are all avenues through which potential customers can find your business without running afoul of the TCPA. Of course, these advertising channels have their own rules and regulations as well like CAN-SPAM for email and the FTC guidelines for influencer marketing.

Find new ways to get consent

We’ve seen that best practices rely on consent. Mindful of the requirements for consent we’ve laid out, consider all the ways your business interacts with customers, and various points where you can obtain the customers’ prior written consent.

Conclusion

The TCPA provides significant consumer protection while still allowing businesses to send a variety of communications. Compliance takes time and money, but it is worth the savings in liability as well as the increased consumer good will.


[2]What is an ATDS? Don’t let the words “automatic” or “system” fool you – the category of what counts an ATDS is actually quite broad. The TCPA defines ATDS as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, to dial such numbers.” Each and every smartphone, tablet, VoIP phone, calling app, texting app (basically, any phone that's not a “rotary-dial phone”) will be an automatic telephone dialing system. The FCC and courts determine whether a particular device fits within the definition of an ATDS on a case-by-case basis. For example, speed dialing does not constitute as an ATDS and the FCC declined to specify whether smartphone users could fit the definition of an ATDS.

[3]47 U.S.C. § 227(b), (c).

[4] https://www.bna.com/tcpa-dos-donts-n17179929013/ https://www.bna.com/tcpa-dos-donts-n17179929013/ (dead link, use https://web.archive.org/web/20161124095949/http://www.bna.com:80/tcpa-dos-donts-n17179929013).

[5] 47 C.F.R. § 64.1200(f)(8).

[6] Case Examples of Express Consent vs. Implied Consent. In a federal California case, Leckler v. Cashcall, the court held that plaintiff’s mere inclusion of her cell phone number on loan application was not a “prior express consent” for defendant to send prerecorded collection calls to plaintiff’s cell phone; Federal Communication Commission’s TCPA interpretation, which provides that autodialed message calls to cell phone numbers provided by the called party in connection with existing debt were permissible because they were made with the prior express consent of the recipient, was “manifestly contrary to the statute and unreasonable” because it permits the application of the prior express consent exemption “where the consent can be implied”.

In a West Virginia case, Mey v. Pep Boys, the plaintiff sued a group of businesses engaged in buying and selling automobiles, claiming that by leaving a voicemail at her home in response to a classified advertisement that plaintiff’s son had placed on the internet, defendants violated the TCPA. The court said that by posting his advertisement and telephone number on the internet, the plaintiff’s son gave prior consent to third parties to make inquiries about the car. So there was no violation.

[7] 47 C.F.R. § 64.1200(a)(1)(iii).

[8] 47 C.F.R. § 64.1200(a)(3)(iii).

[9] 47 C.F.R. § 64.1200(a)(2). This includes all calls and text messages that are for marketing or sales purposes.

[10] 47 C.F.R. § 64.1200(a)(3). Exceptions for emergency, noncommercial, commercial but no advertisement and not telemarketing, tax-exempt NPO or healthcare message. Note that previously there was a “established business relationship” exemption that has since been abolished (see Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, Report and Order, 27 FCC Rcd 1830, 1838, para. 20 (2012) at https://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0215/FCC-12-21A1.pdf; 47 CFR § 64.1200(a)(3): also see 77 Fed. Reg. 112 (June 11, 2012) at https://www.gpo.gov/fdsys/pkg/FR-2012-06-11/pdf/2012-13862.pdf).

[11] https://apps.fcc.gov/edocs_public/attachmatch/DA-13-1086A1.pdf at 4.

[12] In 2005, Congress enacted the Junk Fax Prevention Act which amended provisions dealing with fax advertisements within the TCPA.

[13] City Select v. Auto Sales; See also Imhoff Inv. LLC v. Alfoccino, Inc.

[14] 47 CFR § 64.1200(a)(4).

[15] Id., 47 CFR § 64.1200(f)(6).

[16] 47 C.F.R. § 64.1200 (a)(4)(vi). “A sender that receives a request not to send future unsolicited advertisements must honor that request within the shortest reasonable time from the date of such request, not to exceed 30 days, and is prohibited from sending unsolicited advertisements to the recipient unless the recipient subsequently provides prior express invitation or permission to the sender. The recipient's opt-out request terminates the established business relationship exemption for purposes of sending future unsolicited advertisements. If such requests are recorded or maintained by a party other than the sender on whose behalf the unsolicited advertisement is sent, the sender will be liable for any failures to honor the opt-out request.”

[17] 47 C.F.R. § 64.1200(a)(4)(ii).

[18] 47 C.F.R. § 64.1200(f)(3).

[19] 47 C.F.R. § 64.1200(a)(4)(v).

[20] 47 C.F.R. § 64.1200(a)(4)(iii).

[21] 47 U.S.C. § 227(d)(1)(B); 227(d)(2).

[22] See 47 C.F.R. § 64.1200(f)(15) (defining “unsolicited advertisement”).

[23]47 C.F.R. § 64.1200(b).

[24] 47 C.F.R. § 64.1200(a)(2).

[25] 47 C.F.R. § 64.1200(a)(3)(iv).

[26] 47 C.F.R. § 64.1200(a)(7); (d)(7).

[27] 47 C.F.R. § 64.1200(a)(3)(i), (f)(4); see also 47 U.S.C. 227(b)(1)(A).

[28] http://www.experian.com/regulatory-compliance/consumer-information/tcpa-telephone-consumer-protection-act.html

[29] https://www.fcc.gov/document/fcc-issues-18m-junk-fax-fine

[30] Kaplan v. First City Mortg., 183 Misc. 2d 24

[31] https://www.law360.com/articles/897756

[32] https://oag.ca.gov/news/press-releases/attorney-general-lockyer-files-lawsuit-against-telemarketer-violating-do-not

[33] 47 C.F.R. § 64.1200(d).

[34] 47 U.S.C. § 227(b)(1)(A)(i)-(ii); 47 C.F.R. § 64.1200(a)(1)(i)-(ii).

[35] https://www.fcc.gov/document/telephone-consumer-protection-act-1991

[36]47 C.F.R. § 64.1200(a)(6).

[37]47 C.F.R. § 64.1200(a)(4).

[38] 47 C.F.R. § 64.1200(a)(5).

[39] 47 C.F.R. § 64.1200(a)(8).

 

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