Understanding the Complexities of the TCPA

Even in the most stable of times, much of the market has trouble keeping up with how best to comply with the Telephone Consumer Protection Act (TCPA) and the various changing privacy regulations across the country. 

TCPA has dozens of compliance requirements and it can be confusing to know where to begin. So we asked Paul Gipson, Director, Marketing Compliance Services, CompliancePoint, to share practical guidance on achieving a safe harbor position. Below are highlights from our recent webinar where Gipson walks through building a compliance framework. 

What is the TCPA?

TCPA requires prior express written consent for non-emergency autodialed, prerecorded, artificial voice calls, and text messages to wireless phone numbers, as well as for prerecorded telemarketing calls to residential wireline numbers or faxes.

The act, passed in 1991, is enforced by the Federal Communication Commission but individual states can enforce. It also allows for a private right of action, so plaintiffs attorneys can sue on behalf of a consumer toward an organization.

TCPA continues to be one of the most heavily litigated consumer protection statutes in the country, with over 3,000 lawsuits filed in 2019, many of which were class actions. Over the past decade, the number of lawsuits under the TCPA has increased tenfold, from 351 cases in 2010 to 3,330 cases in 2019. The average TCPA settlement is $6.6M (which doesn’t include lawyer fees or the potential for public relations damage).

Build a TCPA Framework

If you’re calling consumers from third-party leads, it can be challenging to know if you have the proper consent since your partners control the consumer’s experience. Proving consent in the case of a lawsuit can be even harder.

Telemarketers need written consent for all prerecorded telemarketing calls. This means that a purchaser of leads will face a higher standard to prove that the consumer did, in fact, consent to be called.

While marketers have been navigating TCPA for years now, yet, there are still many companies that dial consumers without a clear compliance plan. Calls and texts are a vital component of your customer communication strategy and experience, but they must be conducted within the requirements. A safe harbor TCPA framework should include the following. (For a full description of the framework, access our TCPA webinar on demand.)

• Policies: Establish written procedures to comply with applicable rules.

• Training: Provide training on policies to relevant employees. 

• Manage Suppression: Ensure all applicable DNC lists are accessed.

• Enable: Enable agents to comply with your company’s rules.

• Monitor: Monitor contact activities for compliance. 

• Document: Maintain a record of marketing related activities.

Finding Solutions

To ensure TCPA compliance, organizations should invest in a solution to document proof of that consent. Solutions should allow you to confirm clear and conspicuous consent in real-time while ensuring compliance with evolving consumer privacy regulations. Ask these questions to ensure compliance: 

• Do you know definitively that the consumer consented to be called and/or texted using automated dialing technologies and have persuasive proof the appropriate consent took place? 
• Do you have this proof of consent stored in a location that can be retrieved for years in the future in case of a lawsuit?
• If you work with third-party marketing firms, do you clearly understand how those firms are driving consumers and are you able to prove TCPA consent?

Jornaya’s TCPA Guardian acts as an independent source of truth about a customer’s experience by validating that each lead was generated in a compliant manner. It also provides persuasive proof of consent with our Compliance Report and Visual Playback, which has been used to successfully help clients avoid and dismiss TCPA lawsuits.

In fact, one large mortgage lender we work with had only 36% of leads being generated with a disclosure approved by their brand. Using data from Jornaya TCPA Guardian, they worked with their lead seller partners to greatly reduce the risk and achieve compliance of greater than 90% of leads with an approved disclosure message. And a large life insurance quoting and brokerage firm maintains a 100% TCPA compliance rate for 2.2M+ purchased leads with Jornaya’s TCPA Guardian.

For more information, visit our TCPA Guardian page and our Privacy & Compliance Resource Center.