TCPA Regulations and Compliance: Complete Guide

Type: Blog
Topic: Compliance

What Is the TCPA?

The Telephone Consumer Protection Act 47 U.S.C 227, or TCPA, is a federal statute that aims to protect consumer privacy by controlling telemarketing communications made via voice calls, fax, and SMS texts. 

The TCPA Act was signed into law in 1991, largely in response to an upswing in harassing telemarketer calls. The Act has wide-ranging consequences, including the 2003 formation of a National Do Not Call Registry, which prohibits telemarketers from making unsolicited, unwanted calls to numbers on the registry. 

What Are the Current TCPA Regulations?

With technological advances, the TCPA has undergone several amendments and changes since 1991. The most recent change occurred in 2015 when the Federal Communications Commission (FCC) released the TCPA Declaratory Ruling and Order, which clarified restrictions and consumer rights.

The main focus of the Telephone Consumer Protection Act is to prohibit a telemarketing auto-dialer with an artificial or pre-recorded voice to make a call to a landline or wireless phone without prior express written consent. 

The newest TCPA clarifications included changes such as:

• Telephone services can offer auto-dialer blocking to customers.
• Consumers can revoke consent at any time by putting their number on the National Do Not Call Registry or verbally.
• Telemarketers aren’t allowed to leave pre-recorded messages on wireless phones without express written consent.
• Consent survives the porting process from a landline phone number to a wireless number.

Defining Consent

A large portion of the Telephone Consumer Protection Act hinges on the idea of “consent” and what qualifies or doesn’t qualify as consent. This idea of written consent has practical implications for telemarketers since, in the event of a dispute, the onus is on them to prove that they did receive consent to call or contact the person in question. 

According to the FFC, “prior express written consent” is a written, signed agreement that authorizes the seller to deliver adverts or telemarketing calls or messages to the signatory. Also, the seller can’t force the person to give their consent as a condition of buying any property, goods, or services. 

Some situations in which prior express consent is required include:

• Telecommunications using an automatic telephone dialing system (ATDS) to a residential telephone line (With exceptions for emergency services and healthcare providers)
• ATDS calls placed on a cell phone or mobile device. A manual dialing system is required to make each phone call.

Some situations in which prior express consent is not required include:

• Phone calls made for non-telemarketing purposes that are dialed by a human operator and don’t use a prerecorded message.
• Autodialed or prerecorded voice messages made for business purposes that do not include advertisements or solicitation.

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TCPA Requirements

Compliance with TCPA requirements is essential for any modern business using telecommunications as part of their marketing strategy. Observing and respecting prior express written consent is an important tenet of TCPA compliance, but there are other requirements that telemarketers are expected to meet.

Call Time Restrictions

The TCPA strictly prohibits the hours that telemarketers can make telephone solicitations to consumers. Such a call can only be made to residential consumers between the hours of 8 AM and 9 PM in the consumer’s time zone. The hours defined are meant to give consumers some degree of peace in their private lives, with regard to sleep, in particular.

ATDS Restrictions

The use of automatic telephone dialing systems (ATDS) to deliver telecommunications to consumers who might be charged for the telephone call without prior express written consent is prohibited.

The definition of an ATDS has been recently limited by a 2021 Supreme Court ruling. To qualify as an ATDS, a device is expected to use a random or sequential number generator in either storing or producing a phone number.

Specific types of ATDS calls prohibited by the TCPA are:

• Calling a number assigned to a specialized mobile radio service, cellular telephone service, or other telecommunications from telephone service providers in which the called party is charged
• Calling an emergency telephone line
• Calling guest or patient rooms at hospitals or healthcare facilities including nursing homes

Caller Identification

Telemarketing callers must provide accurate contact information including their name, company, and telephone number or address. At the beginning of a message, the caller must clearly state the identity of the person or entity responsible for the call. The telephone number provided must not incur fees beyond standard local or long-distance charges when called.

Internal DNC List

The Entity-Specific Do Not Call Provision of the TCPA dictates that telemarketers must keep an up-to-date list of consumers who do not want to be contacted via phone call or text.

This list should be specific to a particular organization and not obtained through outside channels. Requests by consumers to be added to an internal DNC list must be recognized and honored immediately.

Robocall Restrictions

Use of artificial or prerecorded voice messages is prohibited in landline or wireless communications without prior express written consent. Robocall restrictions are meant not just for telemarketers but also for debt collection agencies using pre-recorded calls without prior permission to contact a certain telephone number.

National Do Not Call Registry

Telemarketers are expected to observe do not call rules and respect the privacy of phone numbers listed on the National Do Not Call Registry.

After its inception, the TCPA granted power to the Federal Trade Commission (FTC) and FCC to create a national do not call list. While it took more than a decade to actually establish this do not call database, it has become a cornerstone of TCPA law.

The National Do Not Call Registry is used to prohibit businesses from calling restricted phone numbers. Before making any unsolicited sales calls, telemarketers must comply with do not call requests and ensure that no calls are made to phone numbers listed on the National Do Not Call Registry. However, certain types of telemarketing are allowed, such as:

• Tax-Exempt Nonprofit Organization or Charity
• Political Organization
• Telephone Survey

TCPA Exemptions

According to the most recent version of the TCPA, the only exceptions where prior express consent isn’t needed:

• Calls that are manually dialed and don’t have a pre-recorded message
• Calls made for emergency purposes
• Calls not made for commercial purposes
• Calls delivering a pre-recorded health care message made by a covered entity or business associate as outlined in the HIPAA privacy rule
• Calls made by a tax-exempt non-profit organization
• Calls made for a commercial purpose that isn’t telemarketing or advertising

What Does the Consumer Protection Act (TCPA) Mean for My Business? 

The TCPA aims to protect consumers from the frustration of dealing with constant telemarketing calls. While this may be a noble goal, since very few people want to pick up the phone to listen to an ad, the TCPA also represents a minefield for unsuspecting marketing departments and companies.

The number of class-action lawsuits against telemarketers is on the rise, yet many companies that use telemarketing as a marketing strategy don’t feel at risk. Misunderstanding or technical non-compliance isn’t a shield against the TCPA, and lengthy civil suits have hit many large and small companies.

On average, the FTC receives 250,000 complaints regarding TCPA violations per month. The most common violations of the TCPA remain automated dialing to a number in the National Do Not Call Registry or inadequate disclosures during a phone call. 

Currently, the penalties set out by the TCPA are $500 per call made in violation of the TCPA. However, plaintiffs can demand up to three times that amount, which can add up to significant amounts of money. Even innocent mistakes, such as not providing full disclosures, can result in hundreds of thousands of dollars in fines. Since the fine is awarded per violation (or per call), some larger fines have been in the millions of dollars.

Common TCPA Violations

The financial repercussions of violating the TCPA can be catastrophic. It’s not uncommon for TCPA lawsuits and class actions to amount to millions of dollars in fines.

As telecommunications technology continues to advance, it’s crucial that modern businesses stay abreast of the changing TCPA landscape. Legal definitions are often updated and revisions to the TCPA are made with some degree of frequency.

Generally, most telemarketers don’t willfully violate TCPA regulations and most do their best to comply. However, violations inevitably happen.

Some of the most typical TCPA violations include:

• Unsolicited robocalls for marketing campaigns
• Insufficient or missing identification and disclosure
• Automated messages sent to cell phones or mobile devices without prior express written consent
• Autodialed calls to cell phones or mobile devices explicitly listed in a Do Not Call registry

These violations can usually be attributed to a few main causes:

• Lack of Training – Internal compliance with TCPA regulations can be lacking in some organizations, resulting in eventual violations
• Database Errors – False information entered by an employee or provided by lead or prospect in which a telephone number assigned is incorrect
• Lead Fraud – Fraudulent lead information unknowingly stolen from consumers and sold to marketers as legitimate leads
• Purchased Lists – Lead lists bought from third-party vendors that may not have the consent of the individuals on the list

While violations are a major concern for any business engaging in telecommunications marketing, there are some proactive steps that modern organizations can take to ensure compliance.

Frequently Check the National Do Not Call Registry

Be sure that your telemarketing department is frequently checking the national DNC registry to make sure that the contact information of leads is not listed. A high number of leads listed in the national DNC registry could point to a bigger problem with the quality of your lead generation processes.

Make Unsubscribing Simple

Give consumers a quick and easy way to opt out of communications. Accordingly, there should be a process in place to record any “do not contact” requests.

Implement a TCPA Compliance Procedure

Give your team the edge they need to avoid TCPA violations. Creating a company-wide documented procedure can only help to train employees but gives the FCC proof that you’ve made reasonable TCPA compliance efforts within your organization.

Myths Around Consumer Protection Act TCPA Compliance

If you’re feeling secure that you’re TCPA compliant, you may want to familiarize yourself with some of the more common myths surrounding the situation:

We Don’t Use an Auto-dialer

The definition of an automatic dialing system is significantly broader than you may think. If you use click-to-dial to call a number, you may be subject to the same restrictions as a formal predictive dialing system. 

There are plenty of modifications that can turn a digital dialing system into an automated one, and you don’t want to spend a year in court showing that you didn’t use your existing system as a predictive dialer. 

We Get IP Addresses and Screenshots as Proof of Consent

What constitutes prior express written consent may be well-established, but some forms of evidence are less persuasive than others. For instance, while screenshots of customer consent are better than nothing, they may not be convincing enough to avoid a lawsuit.

It’s vital to have a robust system in place that can stand against legal challenges, preferably one with an audit history to show records of consent being granted and/or revoked, with date and time stamps and other details associated that a screenshot alone typically doesn’t provide. 

We’re Too Small

If you’re a small company, you may think you’re safe from litigation. However, the truth is that many consumers are fed up with telemarketing calls and will lash out at anyone they can. Sometimes small companies are viewed as more likely to comply with a settlement, since they’re less likely to have a team of lawyers on their side or may not have the resources to bother with a protracted legal battle. Being a small company does not protect you: if you use your phone to call customers, you may unknowingly violate terms of the Telephone Consumer Protection Act, which can lead to a ruined reputation and significant expenses. 

What Should I Do?

The Telephone Consumer Protection Act (TCPA) can be an intimidating set of regulations to tackle, especially alone. You may want to consider halting sales outreach efforts via an automated method until you’ve performed a thorough risk assessment. 

As inadequate disclosures are one of the top TCPA complaints, an important step is to review your TCPA disclosure and get it up to scratch.  Some of the primary elements of a proper disclosure include:

• The disclosure meets your specific legal and company standards.
• The disclosure identifies the telemarketers by name.
• The disclosure states that calls may be pre-recorded and may be made via an automatic dialing system or SMS text message.
• The disclosure is understandable and prominently displayed.
• The disclosure gets presented to the customer before any telemarketing communication.

In addition, the consumer must be aware of and understand several things:

• The consumer understands that agreeing to the disclosure grants your company express written consent to contact them. 
• The consumer understands that they don’t have to agree with the disclosure to obtain goods or services.
• The consumer gives express consent via your company’s mechanism, such as a checkbox or signature, and the event is recorded and kept on file.

Your next step should be to get in touch with a specialist who understands the law and how to apply it to ordinary telemarketing situations, alongside a scrubbing solution that can keep your contact lists clean and compliant with an audit history to verify express consent and whether it has been granted or revoked.

Get in Touch with a TCPA Compliance Solutions Specialist

Don’t just rely on a TCPA compliance guide to dictate your policy regarding telemarketing communications. Even the smallest mistake can be incredibly costly, so it’s worth your while to find a specialist to help you draw up a comprehensive compliance solution.

If the idea of accidentally violating the TCPA is keeping you up at night, give PossibleNOW a call. We have a team of experts on hand to help you mitigate your risk and keep you safe during your lead generation activities.

Our flagship product DNCSolution is the leading Do Not Contact solution for multi-channel direct marketing compliance, created with regulations like TCPA and the CAN-SPAM Act in mind. And our compliance advisory experts can help you assess your level of risk, identify any areas of concern, and work with you to ensure ongoing compliance with regulations like TCPA.

FAQs

What is a violation of the TCPA?

TCPA violations include unsolicited robocalls for marketing campaigns, insufficient or missing identification and disclosure, automated messages sent to cell phones or mobile devices without prior express written consent, and autodialed calls to cell phones or mobile devices explicitly listed in a Do Not Call registry.

Does TCPA cover text messages?

Yes, TCPA regulations include all forms of telecommunications including SMS text messages. It’s required that any business or organization must receive express consent from consumers prior to sending any automated text messages. A company may no longer rely on customer history or other such established business relationship data to make telephone solicitations via text.