Companies can put their business at legal and financial risk each time they act on a lead because the Telephone Consumer Protection Act (TCPA) allows consumers and law firms to bring lawsuits over even minor compliance lapses. Over the past decade, the number of TCPA lawsuits has increased tenfold. With penalties of up to $1,500 per text/call and the cost of an average TCPA settlement over $6 million dollars, the potential threat the TCPA poses to a firm’s bottom line and reputation are real.
Wireless Calls & Consent
The TCPA allows making telemarketing calls to a wireless number using an automatic telephone dialing system (ATDS) or artificial or pre-recorded messages with a called party’s “Prior Express Written Consent“. Companies today often utilize an ATDS to maximize efficiency, lower cost per sale, and make use of the detailed call and agent productivity reporting tools. However, they must keep in mind whether or not calls are made for informational or marketing purposes and whether or not they have the correct level of consent to contact a cellphone. Another key compliance consideration is navigating the reality of cellphone ownership and exchanges of ownership.
The FCC has made it clear that a called party is not the intended recipient, but rather the current subscriber or customary user of that line. Recipients have no duty to inform callers about the reassignment. Therefore, using a 3rd party database to identify the likelihood the phone belongs to the person you are trying to reach is a great way to create a defensible position and demonstrate a strong level of compliance due diligence. This should be used if a lead list is purchased or if substantial time has passed since engaging with a customer because roughly 100,000 numbers are ported to cellphones or reassigned every day.
The DNC List
Lastly, in an effort to give consumers control over the number of telemarketing calls they receive, Do Not Call (DNC) lists were created by lawmakers at the Federal and State level. Consumers may register their residential and/or wireless telephone number(s) placed on the DNC lists, with very little effort, and at no cost. If the ultimate goal of the telephone call or text is to make a sale or promote a product, then the call must be deemed marketing in nature and not informational. Companies that make marketing calls are required to access and suppress against a version of the National DNC list that is no older than 31 days.
This resource is not intended to be a scare tactic. The TCPA has created an entire industry of professional plaintiffs and opportunistic law firms who actively seek to capitalize on allegations of TCPA violations. However, with proper compliance parameters in place, your company can enjoy the benefits of texting/calling consumers with peace of mind.
Author: Paul Gipson
Director of Marketing Compliance