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TCPA: The right consent for the right message.

Summary: The Telephone Consumer Protection Act (TCPA), enacted long before the rise of cell phones and text messaging as America’s primary means of communication, has befuddled ...

The Telephone Consumer Protection Act (TCPA), enacted long before the rise of cell phones and text messaging as America's primary means of communication, has befuddled business with its complexity. Under the TCPA, sending text messages and autodialed calls to cell phones is not absolutely illegal, but requires prior express consent from the recipient. In addition to affirmative opt-in consent, the particular type of consent needed depends on the message being delivered and the means of delivery.

The TCPA governs calls and texts to residences and businesses. For compliance purposes, text messages are treated like calls to cell phones. Enforced and interpreted by the Federal Communications Commission (FCC), the TCPA supplements the Federal Trade Commission's Telemarketing Sales Rule. Businesses have found that FCC enforcement is not the biggest risk under the TCPA, as even more costly are private plaintiff's use of the confusing consent obligations as a basis for class actions seeking the TCPA's penalties of $500 to $1,500 per call/message. These class actions are then used to extract huge sums from businesses small and large alike.

What type of consent is needed?

Among other things, the TCPA generally prohibits text messages, autodialed/pre-recorded voice calls to cell phones and pre-recorded voice calls to residential land lines unless the caller has "prior express consent." The type of consent required under federal law will vary depending on the technology used, the type of device receiving the call and the message content. Remember, even if consent is not required under federal law, there still may be an applicable state law that affects the legality of a particular call. For example, a Connecticut law took effect on Oct. 1, 2014, that prohibits text message solicitations without prior express written consent and provides for a $20,000 per penalty violation.

Manually dialed calls

What is not covered by the TCPA? As a general rule, TCPA has no impact upon live, manually dialed calls to either landline or cell. While this seems straight forward, the capacity of the technology used to make the call may come into play, as marketers reliance on the manual dial exception can run afoul if using equipment with the technological capacity to be deemed an autodialer.

Commercial calls/texts to cell phones using autodialers and commercial calls to landlines using pre-recorded voice

Commercial/solicitation calls or text messages to cell phones made via a device with autodialer capacity as well as commercial calls to landlines using pre-recorded messages are potentially subject to TCPA prior express written consent requirements. Prior express written consent should be obtained through a signed written agreement that clearly and conspicuously discloses to the consumer that by signing the agreement, he/she authorizes the seller to deliver marketing messages to a designated phone number and also that the consumer is not required to give consent as a condition of purchasing any property, goods or services. The required signature may be obtained in any manner complying with applicable state or federal law. Callers must retain a copy of consent or other evidence sufficient to prove that the consumer agreed to the consent language.

Importantly, under FCC regulations, consent to call must come from "the person called" and the consent must be given to "the person or entity on whose behalf a telephone call or message is initiated." Thus, marketers should be very wary of relying on third-party lists, even where they are represented as opt-in lists, and should carefully inspect the authorization to confirm the scope of consent.

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The consent language was modified effective October 2013. While there is a petition for clarification pending before the FCC that would allow different language to be used when obtaining prior express consent, the FCC can be very slow to act, so the prudent course is to rely only on authorizations obtained using the current language. Moreover, there is also no longer an exception for an existing business relationship.

Non-commercial calls and texts -- Informational, political, and non-profit

The prior express written consent standard discussed above is not mandated for non-commercial or informational calls. While there is a lower standard for non-commercial calls and texts such as political calls and charitable solicitation requests made to cell phones, consent is still required, but, prior oral consent is permitted. However, if there is a dual purpose behind the call (information and solicitation), high level of prior express written consent could be required.

Package delivery company calls

In 2014, the FCC allowed package delivery companies to make unsolicited texts or autodialed, pre-recorded calls to inform consumers of an impending package delivery. This ruling is an exception to the federal requirement that consent to send such messages must come only from the intended recipient. As a result of this ruling, package delivery companies may now send texts or autodialed calls to package recipients, with the consent of the package sender, provided the messages meet certain conditions.

Social media websites

The FCC has also slightly relaxed the form of consent required for social media networks. Earlier this year the FCC responded to a petition clarifying that text-based social networks may send texts to confirm a consumer's interest in joining the social network even if the consumer was invited by a different person. Thus, for non-commercial messages, a network can rely on a party to provide consent to invite non-users to receive such messages assuming the initial user affirmatively represents he/she has obtained consent from the non-user.

Debt collection calls

The courts have split over what type of consent is required for debt collection calls. In Mais v. Gulf Coast Collection Bureau, decided on Sept. 29, 2014, the 11th Circuit ruled that a debt collector's autodialed calls did not violate the TCPA even though the consent for the call was given indirectly to the debt collection company making the call. Although there were three degrees of separation between the caller and consent, the court found that the cell phone number did not have to be provided directly to the debt collector placing the calls. While it remains to be seen if this case will be used as precedent outside the debt-collection context, the ruling may be part of an emerging trend that TCPA consent can be indirectly obtained from persons other than the called party.

Conclusion

Compliance with the TCPA consent requirements remains a daunting task fraught with peril. Marketers intending to deliver text messages or make covered calls must carefully examine the type of call/message, what technology is being used to deliver it, and what level of consent has been obtained.

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Publication:Inside Counsel
Date:Oct 28, 2014
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