TCPA Consent: How To Obtain Legally

This is PART THREE in a five part series focusing on Internet marketing, lead generation and telemarketing compliance. 

The amended Telephone Consumer Protection Act (“TCPA”) regulations have imposed a number of obligations upon telemarketers, including additional consent, abandonment and opt-out requirements for pre-recorded or autodialed telemarketing calls.  The following is intended to focus primarily upon TCPA’s written consent requirements for online forms.

TELEMARKETING CALLS TO MOBILE PHONES.

Prior express written consent is required for pre-recorded/autodialed telemarketing calls to mobile phones.

Unless the telephone call is purely informational, verbal consent does not qualify.  Verbal (or written) consent will only suffice (and is required) for informational, non-telemarketing calls made to mobile phones.  Dual-purpose calls are considered telemarketing.

A purely informational call is one that does not possess a telemarketing purpose, or offer, market or promote products/services to consumers.

Note:  The TCPA broadly defines an autodialer a/k/a an automatic telephone dialing system (“ATDS”) as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.  Therefore, the “potential capacity” of equipment can create TCPA liability despite the equipment’s actual configuration and use.  The FCC includes “predictive” dialers within the ATDS definition.

Many telemarketing calls and text messages are subject to the new TCPA rules even without the use of a pre-recorded or artificial voice.

TELEMARKETING CALLS TO RESIDENTIAL LINES.

Prior express written consent is required for telemarketing calls made to residential land lines using an artificial or pre-recorded voice.

No consent is required for purely informational calls to residential lines.

Note:  All pre-recorded telemarketing messages must include a DNC automated, interactive voice and/or key-press-activated opt-out mechanism and immediately terminate the call.  Opt-out ability must be available even when the call reaches an answering machine via the provision of a toll-free number that enables the consumer to connect to an automated opt-out mechanism.

THE TCPA DISCLOSURE.

The disclosure must be “clear and conspicuous” (in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language).

The disclosure must indicate an affirmative agreement (e.g., “By pressing the ‘Submit’ button, I agree to receive…”) and inform the consumer that he/she is authorizing a company to initiate telemarketing calls and/or texts using automated technology, or an artificial or prerecorded voice.  It must identify the specific telephone number that the company is authorized to call or text for telemarketing purposes.  If the agreement includes more than one number, it must be clear at which number(s) the person is consenting to receive calls.

Note:  The use of a “Submit” button and appropriate disclosure language (e.g. “By pressing the ‘Submit’ button, I agree to receive…”) is likely sufficient if the form is used exclusively for obtaining written consent to call the consumer.  If the form serves a broader purpose (e.g., a registration page, a profile page, order form, etc.), an additional step should be considered for consumers to provide consent, such as checking a consent box.

Only the specific company that is authorized to engage in telemarketing should be identified.  Affiliates, partners and other related parties should each obtain distinct prior express written consent for their own telemarketing activities.

Additionally, the disclosure should state that the recipient is not required to sign the agreement as a condition of purchasing any property, goods or services.  The disclosure should also state that consent may be revoked at any time and through any reasonable means.  The manner in which revocation may occur cannot be limited.

Required disclosures should be made in immediate proximity to the button that consumers will use to provide their electronic signature and assent to the agreement.

It is important to note that those engaged in telemarketing bear the burden of demonstrating that a clear and conspicuous disclosure was provided to, and that unambiguous consent was obtained from, a recipient of a telemarketing call or text.

OBTAINING A LAWFUL ELECTRONIC SIGNATURE.

The written agreement must be signed by the consumer who will receive telemarketing calls or texts.  Electronic signatures obtained in compliance with the E-SIGN Act are sufficient under the new rules, including permission obtained via e-mail, website form, text message, telephone key press or voice recording.  Traditional forms of writing are also sufficient.

RECORDKEEPING IS CRITICAL.

Recordkeeping is a critical component to establishing TCPA compliance.  Documenting the manner and timing of consent is vital for numerous reasons, including issues related to re-assigned numbers.  Records of prior express written consent should be maintained for five (5) years from the last date the consent is relied upon to make a call and include, at a minimum, a name, a telephone number, time/date of consent, IP address, URL where consent was provided, and a screenshot of the precise language displayed at the time consent was obtained.

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Given the increasingly expansive interpretation of the statute and related penalties, the TCPA has become an institution for class-action lawyers across the country.  Those utilizing their own or third-party telemarketing resources are well-advised to scrutinize related telemarketing operations and relationships.

Please contact the author if you are facing a telemarketing related litigation matter or are the subject of a regulatory complaint.  An experienced telemarketing lawyer will also be able to assist you with questions pertaining to the application of written consent requirements in specific contexts, complying with the FCC’s recent TCPA Declaratory Ruling, and issues related to other telemarketing laws and regulations.

Information conveyed in this article does not purport to cover every issue associated with rules and regulations implementing the Telephone Consumer Protection Act. This article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

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