The Telephone Consumer Protection Act of 1991 (“TCPA” or the “Act”) was enacted principally to bolster consumer privacy by addressing issues such as unsolicited facsimiles, pre-recorded telemarketing calls to residences, and autodialed and pre-recorded calls to cellular telephones. The Act established rules regarding the types of consent required to make specific types of telephone calls. It also authorized the establishment of a federal Do-Not-Call (“DNC”) list.
With no present cap on potential damages and restrictive state telemarketing laws, cutting-edge dialing technologies companies face staggering risks. Make no mistake about the fact that plaintiffs’ attorneys are lying in wait for the new written consent requirements to become effective.
The current standard requires verbal or written prior express consent for telephone calls/texts that employ an automated telephone dialing system to a mobile phone. Beginning October 16, 2013, with limited exception, prior express written consent will be required for certain telemarketing calls or text messages, specifically, autodialed and pre-recorded calls to mobile phones, and pre-recorded residential calls. The “established business relationship” exception for pre-recorded messages to a residential number without written consent will no longer suffice.
Telephone calls that are manually dialed and that do not contain a pre-recorded message are exempt from the TCPA. In addition, verbal or written prior express consent will remain permissible for non-solicitation calls to mobile devices using an automated telephone dialing system.
Information calls and other non-sales calls to residential numbers are permitted and do not require consent. However, be certain to carefully monitor your scripting on informational telephone calls to minimize the risk of litigation or a regulatory action.
What constitutes an “automated telephone dialing system continues to be the subject of great debate. Simply speaking, an automatic telephone dialing system is anything that can dial numbers without human intervention.
A key consideration for whether a company must acquire consent for autodialed calls/texts is whether a call is made by a dialer with “capacity.” The issue of whether the mere “capacity” of dialer software to call via a random/sequential number generator makes the dialer an “autodialer,” even if it is not being used in that manner, is indeed a controversial one.
At present, however, it is safer to assume that the TCPA has no impact solely upon live, manually dialed calls that are not made on equipment with the technological capacity to be an autodialer.
Written consent to receive future calls that deliver autodialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser must be clear and conspicuous. An experienced advertising law attorney can assist you to carefully craft language for gaining consent in specific contexts that simultaneously mitigates the likelihood of an opt-out or DNC response.
Methods of obtaining consent may include, without limitation, written agreements, lead generation forms, emails prompting consumers to reply and/or inbound/outbound telephone calls. Whatever the method, recordkeeping and data preservation is critical. Also, pre-checked boxes are impermissible. Consent may not be shared between affiliates or subsidiaries unless a consumer expressly and objectively agrees to it.
Numerous requirements apply regardless of the method that you seek to obtain consent.
For example, an electronic signature in accordance with the E-SIGN Act will suffice as an electronic means of collection. The agreement, whatever form, must specifically indicate the advertiser(s) to whom consent is being provided.
If consenting to autodialed solicitation calls, the agreement must include the consumer’s telephone number. There must be an affirmation of agreement by the consumer and the agreement must clearly and conspicuously disclose that the consumer is authorizing the advertiser(s) to make telemarketing calls, that calls will be made using an automated telephone dialing system or pre-recorded message, and that eligibility to purchase the goods or services is not conditioned upon consent.
If you are using physical forms, be sure the agreement is dated. Secure both an actual signature and ensure that the consumer’s name is clearly printed elsewhere.
If you are obtaining consent via online forms, you must maintain names, telephone numbers, times/dates of consent, IP addresses and URLs of consent pages. Also, be prepared to produce precise language used on the webpage at the time consent was obtained.
Mandatory online disclosures should be made in immediate proximity to the “Submit” button. Electronic signatures require the consumer to take an affirmative action. The use of a “Submit” button and appropriate disclosure language may be sufficient when the form is used exclusively for obtaining consent. However, utilize a separate consent box if the form serves a dual purpose.
Experienced advertising law counsel should be able to propose solid options that reduce the burdens associated with obtaining prior express consent when generating leads via online forms.
If you seek to obtain consent via email, a compliant reply is required. Email replies following lawful and proper disclosures require that consumers reply with language such as “I agree” and type their name in order to constitute a signature. Alternatively, consider directing consumers to a webpage via hyperlink in the email. Of course, copies of all emails must be maintained.
If you seek to obtain consent via telephone, ensure that consumers provide clear and unambiguous consent following proper disclosures. Consent may take the form of a voice recording or a key-press. Do not group different types of disclosures. Compliant scripting during inbound and/or outbound telephone calls is critical. Lawful recordings should be maintained. Key-press consent must be capable of being captured and stored.
The best TCPA defense is to avoid a lawsuit or regulatory action in the first place. Familiarize yourself with all outbound calling, texting and faxing programs. Be sure that you are ensuring compliance with DNC requirements, as well as opt-out requirements that went into effect earlier this year.
Review databases and methods of obtaining consent, including forms consumers may be presented with in attempt to secure consent. Do some compliant forms have a higher conversion rate than other compliant forms? Start securing prior express written consent from prospective and current customers through the appropriate language now. Begin to organize CRM recordkeeping. Do not wait until it is too late and never presume consent.
Carefully assess affiliate and lead generation contracts. Ensure that lead sources meet threshold requirements including, without limitation, that applicable disclosures indicate the specific advertiser(s) to whom consumer consent is being provided.
In short, review your telephone and text message marketing campaigns for compliance. Remember that consent can always be withdrawn. Consult with advertising compliance counsel to develop and implement employee training and testing processes.
Well thought out business and legal compliance strategies for obtaining consent will go a long way.
Richard B. Newman is an Advertising Law Attorney at Hinch Newman LLP specializing in advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state attorneys general, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
Disclaimer: This article is intended for informational purposes only and does not constitute, nor should it be relied upon as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney. Consult with a legal professional for assistance with the preparation of compliant telemarketing campaigns.
Richard B. Newman
HINCH NEWMAN LLP
Attorneys at Law
Admitted in California, New York,
Nevada, and the District of Columbia