Every company relies on communicating with customers to succeed. However, before you make your next call or send your next text, be sure you know the details of the Telephone Consumer Protection Act.
Understanding the TCPA
If you are unfamiliar with the TCPA, take the time to learn the basics. This law protects consumers from unwanted communication by preventing the use of certain technology for making calls and sending text messages without stated levels of consent. It also prohibits making unsolicited marketing calls to phone numbers on the National Do Not Call Registry. In essence, the TCPA requires you to receive express written consent from clients before you contact them, which protects their privacy.
What Express Written Consent Requires
Complying with the TCPA involves acquiring express written consent. This is a written agreement between a company and a consumer that states the consumer’s approval to be contacted by the company, and it includes the phone number that can be used for such contact. Note that approval may be in the form of a signed document or online form (with a written or digital signature) or obtained by the click of a button, such as on a cell phone text.
The current TCPA requirements include the following:
- Documentation: The agreement from the customer must be in electronic or paper format so it can be stored and accessed.
- Clarity: The agreement must clearly state what the consumer agreed to. In addition, consumers must have the unambiguous option to change their minds and revoke consent.
- Prior approval: The customer must provide consent before businesses communicate any marketing messages.
On Jan. 27, 2025, the TCPA will include new requirements to tighten the policy and close loopholes regarding broad consent. They include the following:
- Specific consent: A consumer’s consent must be acquired on a one-to-one basis, meaning it authorizes one particular business to make contact. Blanket consent for multiple companies, including so-called marketing partners, no longer will be permitted.
- Stated context: Approval applies only to the product or service stated. For example, if a customer authorizes approval for lawn service to make contact, permission is not granted for related products such as gardening tools or home improvement.
- DNC for text messaging: Since the Federal Communications Commission has mandated that National DNC Registry restrictions apply to text messaging and phone calls, the TCPA will enforce the prohibition of placing calls or texts to any phone numbers included in the DNC Registry.
- Text blocking: When the FCC identifies illegal text sources, wireless carriers are required to block text messaging from those numbers. The intent is to reduce fraud and spam.
Penalties for Noncompliance
Any person or business that uses telephone solicitation must comply with the TCPA. It covers all telephone messaging, including voice calls, texting, faxes, and VoIP calls. Businesses that fail to obtain express written consent and comply with the TCPA can face financial and legal penalties. Individuals are permitted to sue companies for $500 per violation, but that amount can triple if the court determines the noncompliance was intentional. Companies can face regulatory fines from the FCC, as well as injunctive relief, when courts direct them to curtail their practices. In addition, violators could be the target of class action lawsuits, which can result in hefty judgments or settlements.
Beyond monetary consequences, businesses that do not comply with TCPA requirements can receive negative publicity, which can harm their reputations.
Final Thoughts
To protect your company’s interests, it is essential that you follow the TCPA guidelines. Be sure to obtain and store your customers’ express written consent. If you are using a third party to handle customer solicitation, make sure they adhere to these new requirements, as well. Having these records will protect you if a complaint is filed, so make them readily accessible.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
