Disclaimer: This blog is for general information purposes only and does not constitute legal advice and does not create or intend to create an attorney-client relationship. This blog post should never be used to replace the advice of your personal attorney.
TCPA stands for the Telephone Consumer Protection Act. The bill passed Congress, and President George H. W. Bush signed it into law in 1991. The necessity of the TCPA at that time was conspicuous. The previous legislation that dealt with telephone solicitations was the Communications Act of 1934. 47 U.S.C., as is the code of the Telephone Consumer Protection Act, which tries to adjust the federal laws to face new realities. Technology advances every year, and so do marketing practices. For example, automatic telephone dialing systems or autodialer didn’t exist at the time of writing the original law. The TCPA tries to deal with that problem. One important thing is that the Act in its current form isn’t in its final stage. Wireless technology and the way telemarketers use it continues to evolve. It’s only logical that legislators constantly improve the text of the law as well.
What Exactly Does the Telephone Consumer Protection Act Do?
The chief purpose of the Act is to protect consumers against unethical, bothering, or downright illegal telephone solicitations. Different provisions in the text deal with various forms of telephone solicitations. Some concern direct calls from operators, others robocalls and auto-dialed calls, text messages, and spam fax. New additions to the law appear regularly. They reflect the ever-changing technology, which impacts the way telemarketers operate.
The basic tenants of the TCPA are precise. Their enforcement is in the jurisdiction of the Federal Communications Commission (FCC). The Federal Trade Commission (FTC) and the attorneys’ general offices throughout the country also deal with certain aspects of the law. To guarantee TCPA compliance, businesses, and telemarketers:
- Shouldn’t contact citizens at their private homes outside the standard business hours – Monday to Friday, from 8 am to 9 pm, local time;
- Don’t have permission to employ the so-called robocalls – artificial recording of voice – for solicitations;
- Need to abide by the rules of the Federal Do Not Call Registry;
- Have to prepare company-specific in-house Do-Not-Call lists and enter the numbers of all individuals and businesses that request to stop hearing from them;
- Always give their name, postal address, and telephone number to the called party via caller id. If a third-party telemarketer performs the telephone solicitation, they should provide the same information about the company that hires them;
- Can’t use automatic telephone tools or prerecorded messages to contact any emergency telephone line in the US. These include 9-1-1, firefighter departments, ambulances, sheriff offices and the like;
- Don’t have permission to send unsolicited faxes for advertising purposes;
- Don’t have permission to use auto-dialed calls to engage more than a single line of a multi-line business;
The only way for a business to legally not abide by these rules is when they have prior express written consent from the consumer. All other cases count as a violation of the TCPA. Consumers may file a complaint with the FCC or pursue a private lawsuit in federal court. If they can prove the telemarketer is at fault, the court may order the company to pay. The compensation can reach up to $500 per call, or restitution of damages, whatever’s greater. In case there’s evidence the violation was willful, the sum gets multiplied by three – $1500 per instance.
Does the TCPA Protect Everyone?
As the name suggests, the TCPA deals with the protection of consumer rights. That means individuals in the US can count as a means to not receive unethical and downright illegal telephone communications from businesses and telemarketers. Business-to-business calls, however, don’t fall into the jurisdiction of the Telephone Consumer Protection Act. There’s a separate set of rules for these. The TCPA still regulates the way companies communicate with their current and potential consumers. If your business is planning a telemarketing campaign, you need to make sure you abide by the rules. It’s important to remember that when hiring an outside telemarketer to make the calls for you, they need to be ethical. You will be accountable for any failure in TCPA compliance, even if you aren’t directly responsible.
What About SMS?
At first, the TCPA dealt exclusively with voice messages. That’s because the technology for text messaging wasn’t widely spread. By the end of the 1990s, though, SMS became a big part of how companies communicated with potential consumers. That was when complaints started to pile up at the FCC. Several adjustments to the TCPA, including the Can-Spam Act, attempted to fix the issue. According to the current state of the rules, you can make text solicitations when:
- You’ve obtained prior express consent from the consumer to receive SMS marketing messages from you;
- The texted party has the option to opt-out of receiving communications from you at any moment;
- The consumer has given you prior consent to receive transactional, informational, and conversational messages from your business;
The Can-Spam Act also contains provisions about voice and text communications that originate outside the US. If you’re planning an international campaign, it would be best to seek legal advice. TCPA Protect can help you ensure the peace of mind of the consumers who receive your business communications.
Exceptions to the TCPA Rules about Text Messages
Several types of entities may skip the strictest SMS regulations and send text communications to consumers. They are rather specific cases, and if your organization falls into any of those categories, you should know it:
- Tax-exempt Non-Profits – like the DNC list, the TCPA allows text messages from non-profit organizations. The only requirement is that they don’t sell any goods and services. Requests for donations are perfectly okay;
- Health Care entities – from insurers to national and private hospitals can write to consumers with information about their current insurance status, test results, and other important information;
- All commercial and non-commercial organizations in case of an emergency. It applies when an entity needs to inform an individual about an emergency development. They don’t have to follow the TCPA rules to the letter, and the FCC won’t have a problem with it.
Naturally, an established business relationship or the presence of express consent also puts you in a different position. Get TCPA Protect to help you tailor an SMS campaign according to the Telephone Consumer Protection Act. Thus you’ll ensure your customers’ peace of mind and yours.
The National Do Not Call Registry and TCPA
The DNC list is another addition to the TCPA that needs your attention, no matter whether you are a consumer or a business. Congress approved the creation of the registry in 2003, intending to better enforce the Telephone Consumer Protection Act’s rules.
Consumers can add their landline and cell phone numbers on the list. Companies and telemarketers have to honor their wishes and don’t call them. Unsolicited calls are still possible under certain conditions. Here are the exceptions:
- The National Do Not Call Registry works only for personal numbers. Businesses-to-business solicitations fall into a different category. If you don’t want your company to receive such communications, you should arrange with the telemarketer to add you to their company-specific DNC list;
- Political campaigns may still call individuals on the DNC list for polling and lobbying without recrimination;
- Non-profit organizations can make calls for charitable donations to numbers on the list;
- Surveyors and bill collectors don’t have to abide by the rules of the National DNC Registry;
Despite their exempt status, these entities should still follow the general TCPA rules. That means they can’t contact landlines and cell phone numbers outside standard business hours. The Federal Communications Commission doesn’t tolerate spam and harassment of any kind.
Exceptions for Businesses
There are several instances in which companies and telemarketers may still call consumers who have registered on the donotcall.gov website. The first case is when the number has been on the registry for less than 31 days. That principle stems from the fact that businesses have to compare their call sheets against the DNC list once a month. An established business relationship also permits unsolicited telemarketing calls. Last but not least, a consumer may give you express consent to receive communications from your business.
The TCPA and the National Do Not Call Registry regulate calls for commercial purposes only. That means if the communications don’t contain a sales pitch, they’re permitted. A travel company may still call or text a consumer to inform them their flight needs rescheduling. A courier can dial a number on the DNC list to tell the person their package has arrived.
How Can Your Company Guarantee TCPA Compliance?
Whether it’s your first telemarketing campaign or your company is a seasoned participant in the practice, the TCPA may cause some trouble. Fortunately, TCPA compliance can be quite simple, as long as you follow several guiding principles:
- Always obtain express written consent from consumers;
- Include an opt-out option in all communications;
- Keep the tone and language of the voice messages polite and to-the-point;
- Always honor the DNC list;
- Maintain a company-specific Do Not Call list for individuals who asked not to receive calls from you. According to the current version of the TCPA, you need to keep these numbers for five years;
You shouldn’t have any problems if you do these things. What’s usually problematic, especially for small and mid-sized businesses, is the DNC compliance.
Why is Do Not Call Compliance so Problematic?
There are over 200 million numbers on the registry today. Thousands of new numbers enter the list daily. Before you start a telemarketing campaign, you need to register on the donotcall.gov website as a business. The registration is free, and so are the numbers from the first five area codes you’d want to access. After that, you can subscribe to the numbers in other areas, states, or the whole United States. In addition to the costs of a subscription, you’ll have other expenses too. The TCPA requires businesses to compare the numbers they plan on calling against the registry. All matches become a no-no for telemarketers planning on making sales pitches. The problem is that the comparison is a job for a whole department and requires a lot of computing power. That’s particularly true for campaigns in large or multiple area codes. Mistakes happen, and they cost a lot. The Federal Communication Commission can fine you more than $40,000 per single violation of TCPA compliance, which quickly adds up if the case becomes class action.
What Can You Do?
Avoid human-error that leads to non-compliance. The best way to do that is to go for an automated service such as DNC cleaning. A cleaner is a piece of specialized software that makes a comparison between a company’s call list and the DNC registry. It automatically removes matches and updates the database once a month. The process is considerably faster than doing the work manually. The best part, however, is that the possibility of mistakes is close to zero.
When you are planning your telemarketing campaign, we encourage you to check out TCPA Protect’s cleaner. Our experts tailored the algorithm in a way that gets the job done faster, better, and cheaper. There is hardly a better way to guarantee the protection of your consumers from unwanted telemarketing calls. Along the way, you will achieve full compliance with the rules of the TCPA as well.
Are the TCPA Rules the Same Everywhere?
The TCPA works on a federal level. The Can-Spam Act and the DNC Registry, as its additions, do the same. You can read the laws in the electronic version of the CFR, and they apply in all fifty states. Note that many places add further levels of protection for consumers from their territories. If you are running a telemarketing campaign in California, Minnesota, or South Carolina, for example, the rules may be different. Make sure that you comply not only with the TCPA but also with local legislation. Thus, you will manage to better satisfy your consumers’ needs and avoid unpleasant clashes with the FCC.