Having a disclosure present on your web forms seems like a basic item that all companies include to ensure compliance with the Telephone Consumer Protection Act (TCPA). And yet, an alarming number of sites across the web don’t have them, and take for granted that consumers won’t notice.
Clicking the submit button in and of itself is not the same as providing consent. If you don’t have a clear disclosure present on the form, you are not in compliance with the TCPA regulations. Period.
But, just having a disclosure isn’t enough. There are several specifics related to that disclosure that you need to be aware of and address.
Clearly visible font
To be compliant, your disclosure must be “clearly visible”. So, what exactly is considered “clearly visible”? Well, that’s a bit of a grey area (no pun intended) and no exact parameters have ever been officially defined.
However, Jornaya offers these recommended best practices to its partners:
Font size prominence: 12pt font size or greater (aka 16 pixels)
Contrast: a minimum of 40% contrast between the text and the background color
Whether it is in the form of a radio button, checkbox or dropdown, you should include some form of user interaction. This signals to the consumer that she must take an action in order to give their consent, and has agreed to be contacted.
It is in the best interest of your organization to list in your disclosure any affiliates that may contact the consumer. Whomever makes the phone call is ultimately liable, but whoever generated the web form isn’t necessarily off the hook. Often times we see a trickle down effect when it comes to liability. The consumer will sue whoever called them, but that company who receives a claim against them will try to pass the responsibility onto the generator.
Specify mode of contact
You should ensure that the disclosure clearly explains the method of contact that you will use to reach out to your consumers. Delineate that they will be contacted by telephone, with an auto-dialer, or an sms text message.
Why this is important
The TCPA isn’t going anywhere anytime soon. In fact, TCPA case filings have increased 948% between 2010 and 2015 and 45% between 2014 and 2015. Even if companies manage to escape costly litigation (often resulting in millions of dollars in settlements), the costs to prove that your organization was compliant can be hefty.
Even more damaging than the actual monetary costs of a TCPA claim against your company are the impact on your reputation. In the hyper-competitive markets Jornaya serves, the reality is that multiple TCPA lawsuits can severely damage your reputation. If there is another choice in the marketplace that doesn’t have that TCPA stain on its reputation, a consumer may be inclined to take their business elsewhere. In the long run, these lost customers can be far more impactful to your organization even than the direct monetary losses of a TCPA lawsuit.