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Learn MoreIf 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:
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:
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: