The Current State of TCPA Compliance

If you call on SMS consumers, you need to understand and operate within the regulations of the Telephone Consumer Protection Act (TCPA). The act, originally passed in 1991, requires prior express written consent for non-emergency automatic dialing systems, artificial, or prerecorded voice messages, text messages, and fax machines.

During Journey Summit, the only thought leadership event focused on major-life purchase industries, Tery Gonsalves, Partner, Alston & Bird LLP, and Deborah Solmor, General Counsel, TCS Education System, reviewed strategies for navigating the ever-evolving requirements for compliance. They shared the following strategies to achieve compliance:

• Obtain and maintain evidence of express written consent (EWC)
• Assess if your system is an automatic telephone dialing system (ATDS)
• Stay informed of law developments
• Maintain robust compliance processes
• Review and respond to complaints

Focus on Regulation

Recent regulatory response to a continuing number of consumer complaints received by the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) include:

• ROBOCOP Act (Repeated Objectionable Bothering of Consumers on Phones)
• HANGUP Act (Help American Never Get Unwanted Phone calls)
• TRACED Act (Telephone Robocall Abuse Criminal Enforcement and Deterrence)
• Stopping Bad Robocalls Act
• REAL PEACE
• FCC Modernization Act

Much of the legislation seeks to expand the scope of the TCPA giving the FCC authority to levy heavier fines. Some rulings could change the time limitation to bring an enforcement action. In fact, the Senate recently passed the TRACED Act, which would expand the TCPA, giving the FCC authority to levy civil penalties of up to $10,000 per call for intentional violations. It also extends the statute of limitations for violations of the TCPA to 3 years.

Consider the recent $925M judgment that was awarded in the case of Wakefield v. ViSalus, Inc. The defendant, a marketer of weight loss products, made 1.8 million phone calls with a TCPA violation of $500 per call. The potential liability is significant in any case that moves forward to trial.

TCPA is a strict liability statute, which means that a violation of the TCPA imposes liability on the offender regardless of intent. In other words, there’s no defense for not having consent. While the $925M judgment is rare, TCPA compliance is critical.

Third-Party Liability

Lead buyers working with aggregators must ensure their publishers are compliant. All vendors should obtain consent and know what that looks like. “Done properly, lead generation is an efficient tool and has significant customer benefits,” writes Michele Shuster, founding partner of Mac Murray & Shuster. “Done wrong, it can be a nuisance to consumers. Regulators and litigants have increased their efforts to identify lead generators doing it wrong, as well as the companies that are buying their leads.”

Consider the following TCPA compliance requirements:

• Organizations must understand they are responsible for the action or inaction of any partners or vendors from whom they purchase leads or whom they engage to dial or text consumers on their behalf.
• The requirement to obtain consumer consent before contacting them requires that proof of consent be maintained and available in the case of an inquiry regarding TCPA compliance.
• Consumer consent must be disclosed and obtained in a manner that is clear and conspicuous – meaning that disclosure language displayed on any websites, forms, or documents must be clearly visible and understandable for consumers.