What Does the Revised TCPA Act Mean for Telemarketers?

The Federal Communications Commission (FC) amended the Telephone Consumer Protection Act (TCPA) in February 2012. The revised TCPA Act requires telemarketers to obtain written consent from consumers before sending them automated telemarketing calls. The revised TCPA act went into effect on 16th October 2013. Here is an overview of the new rules and guidelines:

Telemarketing calls to cellphones

According to the old TCPA act, prior express consent - written or oral - was required for sending pre-recorded telemarketing calls to cellphones.

The new act says that prior express written consent is required. That said, verbal consent may be enough if the calls are purely informational.

Telemarketing calls to residential telephone lines

Prior express consent - it could be verbal or written - was required for making automated marketing calls to residential telephone lines, unless of course, the caller had an 'established business relationship' with the consumer. The new rule has eliminated the exemption for 'established business relationships’. Now prior express written consent is mandatory for all automated telemarketing calls. Here again, no consent is required if the call / SMS is purely informational.

In other words, the new rule has made prior express written consent necessary for both mobile and residential calls. There is still an important difference. Verbal consent is still necessary for informational and non-marketing calls to mobile lines.

What exactly is meant by telemarketing calls?

The term telemarketing calls is used to refer to those calls that are made with the objective of promoting products and/or services to potential consumers. Any call made to encourage people to buy a product or service, will be considered as a telemarketing call. In general, all text messages or calls which are not informational in nature constitute telemarketing.

What are dual purpose calls?

These calls serve two purposes. They are informational in nature. They also serve a telemarketing purpose. Examples are: calls or SMS text messages send to customers to remind them that their coupons or gift certificates are going to expire. These calls, too, are considered as telemarketing calls.

The following calls are not considered telemarketing calls:

·         Calls made on behalf of nonprofit organizations are not deemed telemarketing calls.

·         Debt collection calls

·         Any call made for political purposes

·         Any call made by a loan servicer regarding a home or consumer loan modification

·         Refinance calls made by a loan servicer

·         Calls made for non-commercial purposes. These include airline notification calls, school / university notifications, bank / credit card balance or fraud alerts, survey or research calls, package deliveries etc.

What is meant by 'Prior Express Written Consent'?

The term 'prior express written consent' refers to a written agreement that authorizes the seller or other person acting on behalf of the seller to send telemarketing messages using an automated system to the person who signed the agreement. A digital or electronic signature that is recognized by the federal law is also acceptable. This includes permission obtained through a webpage or email.

Written consent checklist

The telemarketer needs to identify each company / seller to whom the consumer is giving consent. The written consent should include an affirmative statement like I agree or I consent. It should reveal that the consumer is permitting the telemarketer to send telemarketing calls or message using automated technology. The consent form should obtain a handwritten or electronic signature. The consent form should also reveal that the consumer is not signing the form as a condition of buying any goods, property or services.

What about existing customers?

Businesses can no-longer rely on verbal forms of consent. Businesses that already have prior written consent from their consumers should evaluate whether they have obtained all the necessary consents. If any of the consents required by the revised TCPA act are missing, they will have to obtain them.

TCPA best practices

Specifically tell consumers that you plan to send promotional SMS text messages. Obtaining written consent early in the relationship is advised.

Specifically identify all sellers in the consent form.

Encourage online consumers to manually check a box after reading the clearly provided disclosures and/or click the submit button after entering their telephone number manually.

Use phone lists directly obtained from consumers. Exercise caution while buying phone lists.