Do you know the cost of the phone calls your company and vendors are making? Even the worst data plan in the world is more affordable than a Telephone Consumer Protection Act violation.
Enacted in 1991, TCPA protects consumers from unsolicited communications and “robocalls” (i.e. calls with prerecorded voice messages, made through automated dialing systems). And while a TCPA penalty can sting, it’s the attendant legal costs organizations should be afraid of: we’re talking about an $88,000 settlement for sending junk faxes without opt-out notices, or a company’s recent $2.88 million settlement in case involving robocalls.
Top 4 Practices for
Staying in Compliance
with the TCPA
We looked at these costs at a recent webinar, Time for a Modern Compliance Program, where our featured guest Michael Semanie also shared his best 4 practices for TCPA Compliance. Michael, a Killgore Pearlman attorney who has worked with numerous automobile dealerships, knows from experience how messy TCPA cases can get. He believes the best defense against a claim is the ability to make sure a violation doesn’t happen in the first place.
Straight from Michael’s desk, here are his top 4 practices for staying in compliance with the TCPA:
1. Differentiate Marketing Calls from Other Kinds of Calls
Remember that the type of consumer consent required to make marketing calls is different from the consent required for non-marketing calls. Make sure you have adequate procedures in place to obtain and maintain the proper type of consent for the type of calls being made.
2. Review Your Consent Procedures
It is important to review your consumer consent forms to determine whether you have made the consent revocable (“gratuitous consent”) or irrevocable (“contractual consent”). It is also advisable to adopt procedures to comply with a consumer’s revocation of consent. Be particularly aware of “partial revocations” where a consumer may place limits on when and how calls can be made.
3. Consider Including Arbitration Provisions in Consumer Agreements
TCPA class action lawsuits have proliferated since the Federal Communications Commission issued its July 2015 omnibus order. Until the Consumer Financial Protection Bureau’s Arbitration Rule compliance date of March 19, 2018 (and thereafter if the Rule is voided), companies should consider including an arbitration agreement and class action waiver in any agreement providing consumer consent to receive calls in order to reduce exposure to class actions. If the Arbitration Rule does go into effect, be sure not to abandon all arbitration provisions, as you may be able to redraft some arbitration provisions to comply with the Rule.
4. Remember: You’re Responsible for Your Vendors
It is important to remember that simply hiring a separate company to make consumer calls does not in and of itself insulate your company from liability since your company may be held vicariously liable under common law principles of agency. Companies should review their vendor agreements and practices to protect themselves from unintentionally exposing themselves to liability.