The Telephone Consumer Protection Act (TCPA) was first drafted in 1991. It’s objective was to protect consumers from unwanted commercial calls, usually from telemarketing companies with auto dialers.
By the time it was updated last year, the communications industry had gone mobile. Those unscrupulous nuisance callers had found a whole new way to bother people: text messaging.
The updated TCPA requires all marketer to obtain express, written consent before contacting people via cell phone. The new rules, laid down by the FCC to take effect on October 16 2013, made two key demands of mobile marketers:
- Prior express written consent required before telemarketing calls or text messages (manually dialed calls without pre-recorded messages are exempt).
- No ‘established business relationship exemption.’ Prior relationships are no longer sufficient reason to continue communications. Unambiguous written consent is obligatory.
In this case, ‘unambiguous’ means the consumer must have received a ‘clear and conspicuous disclosure’ that they will receive calls or text messages in the future. Furthermore, consent is not a condition of purchase, and users must give a phone number at which they can be reached.
The primary objective of the legislation is to prevent unwanted communication from for-profit enterprises, so there are a few exemptions. The only organizations granted special permission to make unsolicited calls and texts are:
- The user’s cellular carrier
- Debt collectors
- Schools
- Healthcare organizations
Regarding express consent, it’s important to note that the burden of proof falls on the advertiser. They must demonstrate unambiguous consent, or face stiff penalties: actual or statutory damages can run as high as $1500 per message/call. It will be up to the courts to determine the appropriate penalty in each case. Their decisions will largely depend on whether a company can be shown to have willfully violated the law. As with any recent legislation, many businesses will plead ignorance – at least the first time.
To protect yourself against potential disputes, make sure you keep records of all communications, between your business and all customers, for a minimum of four years. Screenshots, date stamped data records, IP addresses – anything that could demonstrate consent can be used as evidence in your defense in the case of a class action suit.
As long as your business gets unambiguous consent from users, and maintains a record of that consent for four years, you will not fall afoul of the new TCPA legislation. For further details of the new requirements, visit the FCC website.
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