Andrew Leahey

Posts tagged tcpa
TCPA Compliance Guide

This is for informational purposes only. If you want to discuss your specific situation, get tailored guidance, or if you have any questions about the TCPA or its effect on your practices, please get in touch.

The Telephone Consumer Protection Act (TCPA) was originall enacted by Congress in 1991. Since its inception the TCPA has authorized the Federal Communications Commission (FCC) to enact and enforce regulations that curtail how telemarketers can make calls to consumers and, later, the type of telephones that can be contacted.

The TCPA was enacted chiefly to restrict the rising use of automatic telephone dialing systems (ATDS) which were capable of calling phone numbers sequentially in perpetuity and around the clock, playing prerecorded messages to consumers or connecting them to live representatives when the receiver was picked up. Similarly, Congress sought to restrict expensive fax machine spamming, which was on the rise.

What does the TCPA cover?

The TCPA regulates the use of ATDS and the playback of recorded messages to consumers and the contacting of landline, wireless or cellular, and fax lines.

How to Comply with the TCPA

First, and foremost, businesses can create a formal, written, and abided-by compliance policy. The policy should lay out, in detail, the procedures that employees, independent contractors acting on behalf of the business, and vendors and contractors, will adhere to when using the telephone system to market to consumers. Here is an example of a very broad, very basic TCPA compliance policy template that can give you an idea of starting points.

To be sure, the TCPA compliance policy must be drafted with care, but equally important is adherence. The business should train employees where possible, disseminate the policy to independent contractors and vendors, and keep the policy updated as the law changes. Most of the movement in TCPA compliance comes from the circuit courts and FCC guidance materials. Staying on top of these changes is vital to avoiding liability.

Second, a business needs to create a distinct and separate database of consumers based on the type of telephone line they have contact information for — in short, make a separate list for all the wireless phone numbers, or numbers you suspect might be tied to wireless phones. The restrictions against contacting wireless consumers are significantly higher than landline telephones - most importantly, you need to receive “prior express consent” before you can call a wireless number using an ATDS or use a pre-recorded voice.

This is good practice in general — express written or verbal consent following a “clear and conspicuous disclosure” should be obtained wherever possible. The consent may be provided electronically in compliance with the E-SIGN act, but it must be obtained following a clear statement to the consumer that they will be authorizing the business to contact them in the future. With number portability and the decline of the landline telephone, many consumers will port their landline number to a wireless account. They may have provided you with their number presenting it as a landline number, and it may have been one when they did, but this will be no bar to your liability — and fines are steep.

Third, a business needs to strictly adhere to the National Do Not Call Registry (DNC) and maintain their own do not call list. A business is said to have notice of a number being added to the DNC after it has been listed for thirty-one (31) days. Additionally, a business should maintain their own list of consumers that have requested to be placed on the business’ do not call list, as those consumers may not be on the DNC.

Other Materials

See also, the manual put out by the FCC for TCPA compliance.

My TCPA compliance policy template (PDF).

Telephone Consumer Protection Act (TCPA) -- New Decisions, Changes on the Horizon

The Telephone Consumer Protection Act 47 U.S.C. 227 (TCPA) has, for some time, been steadily increasing in inscrutability. In 2017 it appears set to continue this trend with new case law, even as FCC chairman and expansive-TCPA-interpreter Tom Wheeler cedes the agency's reins on January 20th, leaving the future of the act in new hands.

On the case law front, wasting no time in the new year, the Northern District of Ohio rendered a decision on January 3rd that, in effect, ensures manufacturers of products are not held liable for unsolicited (in this case, faxes) sent by third party entities, merely because the advertisement, if heeded by a consumer, would benefit the manufacturer's bottom line. To hold otherwise, the court was concerned, would give rise to "sabotage liability."

"By way of illustration, it would allow a rabid Tampa Bay Buccaneers fan – with a rhino helmet, red face paint, and an undying devotion to the organization – to trigger per se liability for the organization under the TCPA by gratuitously, and without directive from or notice to the organization, promoting season ticket sales via fax.  The same could be true of a random individual in Boston, mind brewing with scienter, who works to implicate the New York Yankees by advertising their season tickets.  Universal liability for complete inaction was not contemplated by Congress in passing the TCPA and does not appear to have been contemplated by the FCC in crafting and interpreting its regulations."

Thus, the pendulum that is the TCPA swings back, the definition of "sender" contracts -- if only in Ohio, if only for now. 

PrivacyAndrew Leaheytcpa, ohio