by Leonard A. Bellavia, Senior Partner, Bellavia Blatt & Crossett, PC
The Telephone Consumer Protection Act (“TCPA”), which regulates how companies may contact consumers by telephone, prohibits companies from contacting consumers via automated dialing systems, either by text or by telephone, without prior express consent of the party called. These rules significantly change what constitutes prior express consent.
TCPA now requires firms to obtain prior written consent for auto-dialed marketing or advertising calls and text messages. Prior written consent means that the soliciting company must provide a clear and conspicuous disclosure that the consumer consents to receiving auto-dialed calls or text messages, including pre-recorded messages, on behalf of a specific seller, and a clear and unambiguous acknowledgement that the consumer consents to receive such calls and text messages at the number provided. The company cannot condition the sale of goods or services on the consumer consenting to receive auto-dialed marketing or advertising calls, and it is up to the caller to demonstrate that the consumer consented to the contact.
Companies have to be mindful of how these changes to TCPA affect their businesses. First, if you utilize a third party to solicit consumers via calls or text messages, you must ensure that your vendor complies with TCPA. If not, you may find your business liable for violations of the law, which, at $500 per call, can add up quickly. Even if you do not utilize an outside vendor in the aforementioned manner, you may still have to comply with TCPA. It is likely that TCPA considers computers as machines capable of auto-dialing. So, if you utilize a service such as Google Voice, Skype, or an auto-dialer through a CRM system, you will likely need to obtain prior written consent before soliciting consumers by calls or text messages. An “opt-in” text reply alone may not meet the new prior written consent required by TCPA.
Our firm can help you evaluate your current processes and vendor contracts to see whether they conform with these changes to TCPA, and assist you with navigating this and other laws that impact your business.