The TCPA is a federal law passed by Congress in 1991 that prohibits the use of automatic telephone dialing systems (ATDS) and prerecorded automated messages to contact residential or cell phones unless the recipient has given, or has not revoked “express consent”. In 2015 the law was expanded to include text messages.
What constitutes an ATDS?
That is the multi-million dollar question. And it’s still being decided, state-by-state, case-by-case, provision-by-provision.
Since the FCC’s 2015 ruling, courts, litigants, and commentators have grappled with defining an ATDS. They’re all trying to determine which devices have the present or potential capacity to store, produce and dial telephone numbers using a random or sequential number generator – without human intervention. How exactly does one define human intervention? That debate is ongoing, along with light speed innovation of communications technology, which upends decisions almost as quickly as they can be made.
The FCC stated that a case-by-case evaluation is necessary to determine how human intervention applies to each piece of dialing technology. According to CompliancePoint, the regulatory body did make one thing clear in its 2017 Order: a company cannot circumvent the law by sharing ownership of the dialing equipment with a partner company.
What constitutes consent?
Another gray area. The term “prior express consent” is not defined under the TCPA or FCC regulations, however, in it’s most recent 2017 Order, the FCC upheld a previous provision that people who knowingly release their phone numbers have in effect given express consent. The E-SIGN Act recognized that consent may be obtained via email, web form, SMS text message, telephone keypress, or voice recording.
SMS Text messages and internet-to-phone texts do not require written consent if:
- the SMS text message is a response to a customer request and
- is delivered immediately following that request
- includes only the information requested
The opt-out provision
Consent or no consent, telemarketers are legally obligated to provide consumers with an easy-to-understand opt-out via additional messages in an automated menu.
However, the TCPA Blog reports that on February 20, 2018 the Supreme Court ruled to eliminate the opt-out notice requirement for solicited faxes, creating a much tougher challenge for plaintiffs’ attorneys. The Telephone Consumer Protection Act still requires an opt-out notice on unsolicited fax advertisements.
As far as calls and text messages are concerned, informational or non-solicitous calls and text messages delivered with an ATDS require express consent. Solicitous calls or text messages require express written consent.
According to Compliance Point, the FCC granted special consent exemptions for certain free time-sensitive financial and healthcare alerts that are critical to the consumer.
Consent via submission form
By submitting a form on your website, a consumer consents to receive your emails and telemarketing calls.
However, MacMurray Schuster’s TCPA Monitor reports recent lawsuits have clearly demonstrated that in order to pass legal review TCPA consent language must be:
- written in a large enough font for a reasonable consumer to notice
- placed in a prominent location.
What’s large and prominent enough? Best to let an expert who’s seen hundreds of compliant sites help you design and manage yours.
Consent via service agreement
MacMurray Schuster’s latest TCPA Monitor describes a recent case that makes class action suits against marketers more difficult to pursue.
The plaintiffs claimed that Yahoo! violated the TCPA when its instant message platform sent an automatic “welcome” text to a “class” of users. By analyzing consumer class data with their custom scripts, Yahoo was able to show that at least a quarter of the members of the class had agreed to Yahoo’s Universal Terms of Service (“UTOS”). The judge ruled that those who agreed to the UTOS gave their consent. The class of plaintiffs was decertified.
Because Telephone Consumer Act regulations evolve with each court decision, it ‘s imperative to consult with legal and communications experts who keep track of such judicial acrobatics.
What is being done to stop the scammers and spoofers that damage the reputation of legitimate automated message providers?
U.S. consumers receive almost 2.5 billion robocalls and automated notifications per month. The increasing intuitiveness of telemarketing technology allows more and more of them to be made by criminal opportunists who mask their identities, sometimes even impersonating the IRS. The FCC receives over 200,000 complaints about illegal calls annually.
In November 2017 the FCC allowed voice service providers to block certain illegal robocalls before they reach consumers’ phones. Phone companies can now block calls from phone numbers on a Do-Not-Originate (DNO) list and those that purport to be from invalid, unallocated, or unused numbers.
Telemarketing industry leaders are concerned that this power could be expanded, allowing numbers to be blocked erroneously, halting important messages like automated healthcare appointment reminders. The FCC is currently researching the effectiveness of blocking techniques as well methods of unblocking erroneously blocked numbers.
Since reassigned phone numbers can deprive consumers who want robocalls and annoy those who don’t, both consumer groups and marketers would like to make it easier for automated messaging providers to learn of reassigned phone numbers quickly, via a comprehensive database of some sort. Stay tuned for the next installation of autodialer rules.
How can my company comply with the TCPA?
There are two ways to comply with the latest FCC Order:
- acquire the required message-specific degree of consent
- use a dialing method that doesn’t fall under the definition of ATDS
Each of these options demands a detailed analysis of message content and/or equipment functionality. Companies should consult with an experienced attorney, then work with a reputable automated messaging provider like InTouch Connections to craft their mass communication campaigns.
Additional information about the TCPA latest rulings can be found here.
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