This week’s question probes the sometimes fuzzy boundaries around the Telephone Consumer Protection Act.
Q: I have permission to call someone for debt collection.
Does that mean I can call them for marketing as well?
That’s a bit of a trick question. It definitely depends on how you got that consent. I’ll give the basics of it. For non-sales calls, i.e. your debt collection calls, the standard is to have prior expressed consent.
Many times, clients I work with will say, “Well, hey, look, in one of our forms, you put down your cell phone number. That’s prior expressed consent to call you on a debt collection.” And that can be held that way.
But now, if you’re talking about a sales call as prior expressed written consent, that’s defined a different way. Prior expressed consent actually isn’t defined at all by the Federal Trade Commission. But for prior expressed written consent, you have to be very, very specific about the purpose of those calls—that they’re telemarketing calls to a cell phone. I would be very careful about doing that. Plus, there’s a different standard when you’re calling a residential line versus a cell phone.
Here’s what I always caution people to do: If you have a policy that says “this is how I’m doing my sales calls, this is how I’m doing my collection calls,” let’s look from the get-go about how you’re getting your consents, and make sure that they’re compliant with the way that you are making those calls. Remember too, in regards to the TCPA, the person making the call actually has that obligation to determine whether it’s a cell phone that’s being called. If it’s a landline that had been ported to a cell phone number, you only have a brief window in which you can make that mistake. That’s something you have to be very, very careful about: both getting the consent and doing the right form of consent.