Is there a risk that my business isn’t complying with the Telephone Consumer Protection Act (TCPA)?

Figuring out the answer isn’t as simple or intuitive as you might think – and the penalties can be severe if you get it wrong. I can’t plumb all the subtleties of complying with TCPA in this brief post – but I can hit the high points about calls or texts to wireless phones, and help you decide if you should seek further legal advice.

Let’s start at the beginning: the Telephone Consumer Protection Act of 1991 prohibits the use of auto-dialers and prerecorded messaging to emergency lines, healthcare facilities, wireless numbers or any number where the called party pays without the prior express consent of the called party.

The Federal Communications Commission (FCC), which administers TCPA, issued a new order that tightened some provisions of the Act, and recent court decisions have tightened others. The FCC changes go into effect in October.

Taking these changes into account, here are the questions you need to answer about your business operations when it comes to wireless telephone numbers.

IF you: AND you: THEN you: FROM the:

Use an auto-dialer or prerecorded messages
(not obvious)

Call a wireless number
(how can you tell?)

Must have prior express consent

Called party
(also not obvious)

1: Am I using an auto-dialer?

A:  This is not as simple as it seems. The FCC defines an auto-dialer as any equipment that has the capacity to store, generate and dial telephone numbers – regardless of whether the numbers are called randomly, sequentially generated or even come from your own calling list.

That’s right: If you’re calling your own customer list using equipment that stores and dials the numbers for you, you’re using an auto-dialer. Courts have applied the TCPA to auto-dialers in “preview only” mode and to calls made without pressing numbers on a keypad.

2: Am I calling a wireless number?

A:  Once, this was easy – but not any more. Consumers can take their home number and port it to a cell phone, or take their mobile number and convert it to a residential landline. There is no way to look at a number and know if it’s wireless or landline; and most wireless numbers are unlisted, making them even harder to identify.

Moreover, a growing number of U.S. households – currently more than 35 percent – have no landline phone. That means a significant and ever-increasing number of the people you’re calling are using a wireless phone.

Neustar can help with the most comprehensive phone data available, continuously updated and highly accurate. Our TCPA tool enables you to instantly:

  • Identify the type of phone
  • Identify the subscriber who owns the mobile number

3: Do I have prior express consent?

A:  Before last year, if someone gave you a phone number, you could infer they were giving you permission to call. Not any more.

Now, in the case of marketing calls, you are required to get written consent. That means you need to give the consumer clear and conspicuous notice of what it means to give you consent – namely, that they’re going to get pre-recorded calls from you using automated dialing technology – and they must unambiguously agree to receive calls at that number. You must tell them that agreeing to receive such calls isn’t a condition of sale, and you can’t bury it deep in a contract.

Written consent doesn’t mean you must have a signature. It can be an email or a key press in a Web form or even a voice recording. But it must be recorded and producible.

One more important point: having an “established business relationship” with the consumer does not apply to marketing calls – or text messages or MMS – to wireless phones.

4.  Who is the called party?

A:  It’s not who you think you’re calling, according to a significant court case decided last year. It’s the subscriber to the line at the time you place the call. If you have written consent from a person, but that person has turned in the number, and another person has received the number and is using it for a wireless phone, and you place a call to them without having their written consent, you’re in violation of the Act. Neustar can help you here, too, by verifying the current subscriber.

5.  What happens if I get it wrong?

A:  Bad, expensive things! The Act allows the FCC to impose fines of up to $16,000 per violation. Moreover, any consumer can bring a claim, and plaintiffs can claim statutory damages of up to $500 per call without having to show any harm.

Together, these facts make TCPA violations attractive candidates for class action litigation. One recent case settled for $47 million after the business concluded that having a customer’s phone number on an invoice did not constitute prior express consent to receive text messages.

In short, TCPA compliance is not something you want to be wrong about. If this post has raised questions in your mind about your business operations, I urge you to seek qualified legal advice.