The purpose of the Telephone Consumer Protection Act, or TCPA, is to restrict unwanted solicitations by telephone and automated outbound calls, commonly known as robocalls. The TCPA limits the use of automatic telephone dialing systems. The limitations include blast delivery messages that send out programmatic voice, SMS text, or faxes.
The TCPA also protects consumers from fraud. Within the United States, automated dialing systems cannot “knowingly transmitting misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value.”
TCPA became law in 1991, and much of it remains based on how telephony technology worked in the ’90s. Modern communications technologies have evolved since then, making it possible to reach a significant amount of people in a short amount of time. And in 2016, the FCC published an Enforcement Advisory that placed strict limitations on “robotexts.” People must expressly provide permission to businesses that want to send them text messages. The only unsolicited messages allowed are for emergencies or to collect government debt. A violation carries hefty penalties of up to $18,936 per incident.
Last year, American consumers registered nearly 5 million TCPA related complaints against call centers and multichannel contact centers, and more than 3,000 lawsuits filed. These complaints represent an increase of 149% over the previous year. The statute allows for damages of $500 per violation, to $1,500 for willful violations. There is no set limit to the number of losses a plaintiff could receive. The lack of limitations allows aggregate damages in class-wide claims to have a colossal impact on call centers.
Violations of the TCPA are subject to criminal fines and enforced on the federal level by the FCC. Unpaid fines are subject to collection action by the U.S. Department of Justice, which includes civil forfeiture. Penalties can be enforced on the state level as well. Any state officer authorized by law to bring actions on behalf of the state’s residents can file a civil action to an appropriate U.S. district court to impose civil penalties.
In some cases, this can lead to litigation. In 2017, plaintiffs filed over 4800 TCPA lawsuits, an increase of nearly 76% from the previous year. Almost one-quarter of all the cases were class actions.
One such case stands out as a warning to marketers. In SATTERFIELD v. SIMON & SCHUSTER, INC, the defense argued that the equipment they used did not store, produce, or call randomly or sequentially generated numbers. Plaintiffs alleged that because the equipment they used “had the capacity to” do these things, it should be considered an autodialer. Before a ruling on the matter could be adjudicated, a settlement was reached.
The Federal Communications Commission (FCC) set forth the rules and regulations within the TCPA that call centers must follow. Unless a call center has obtained the prior consent of the intended recipient, they must conform to a set of guidelines. They include, but are not limited to:
- Calls can are limited between 8 AM and 9 PM at the local time of the recipient.
- Contact centers must honor the National Do Not Call Registry.
- Callers are required to identify themselves at the beginning of a call. This can include the name of the caller or the entity making the call.
- A telephone number and address where the caller can be contacted must be provided during the call.
- Customers must be able to opt-out of a call made to them.
- Autodialers are not allowed to call two or more lines or a business with multiple lines.
- Autodialers may not place calls to a cellular telephone, pager, or any service for which the recipient is responsible for call charges.
- Unsolicited advertising faxes are prohibited.
- An autodialer can not contact an emergency line (e.g. 9-1-1), health care facility, law enforcement agency.
National Do Not Call Registry
In 2003, the Federal Trade Commission (FTC) opened the National Do Not Call Registry. The registry allows U.S. consumers to place themselves on a list to restrict the number of telemarketing calls they receive. Initially, this list only extended for five years. However, in 2008, it was changed to become a permanent restriction.
The Do Not Call Registry prohibits sales calls. However, those on the list may still receive political calls, charitable calls, debt collection calls, informational calls, and telephone survey calls.
TCPA Best Practices
Scrub Cell Phone Numbers
As TCPA regulations prohibit unauthorized calls to cell phones, it’s essential to use cell phone scrubbing software to keep this from happening. This software can identify if a phone number is associated with a cell phone, and remove it from the list.
Get Written Consent
According to TCPA guidelines written consent, on the part of the recipient, is required for autodialers to:
- Make a call
- Send out a pre-recorded voice message
- Send out text messages to that recipient
The burden of proof of this is the responsibility of the sender. Therefore, it’s essential to make sure that the intended receiver understands the implications of their agreement.
Fortunately, the E-Sign Act (3) allows customers to provide consent digitally. Agreements via email, a website form, a text message, pressing a telephone key, or providing a recording are acceptable.
It’s essential to flag or remove numbers that have either not provided proper consent or are on the Do Not Call List.
Manual dialing allows agents to examine phone numbers and act according, with regards to the rules and guidelines of TCPA.
When reviewing your call script, make sure that your contact information and reason for the call is included.
We Can Help
While compliance with the TCPA is the responsibility of the sending party, our Compass Broadcast Suite allows you to send voice, text, and email messages within a platform that makes TCPA compliance uncomplicated. Contact us to learn more about how we can help you stay compliant.