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As a result of a lack of clarity and understanding, the number of lawsuits revolving around telephone consumer protection act (TCPA) violations has risen dramatically in the past few years. Entities such as Best Buy, CVS, Twitter (News - Alert), and the LA Clippers have all found themselves facing TCPA-based litigation, and a recent TCPA-related settlement by Capital One even reached the $75.5 million mark, signaling that businesses need to take TCPA violations seriously.

To counter the uncertainty and hopefully cut down on the legal challenges, the FCC (News - Alert) recently clarified the TCPA rules. While pundits still are hashing through the details, Bloomberg BNA has put together a nice list of “do”s and “don’t”s that businesses should follow as things get sorted out:

• First, obtain written permission prior to contacting consumers with telemarketing messages. This has always been good practice, but now it is crucial given the stakes. Don’t assume that prior consent given years ago is still valid, either.
• Along with obtaining written permission, give several ways for consumers to opt-out of telemarketing messages because they are legally allowed to opt out at any time. Make consent forms clear and easy to submit.
• To cover your butt, make sure that you keep records of all calls for at least four years to prove that no TCPA violation has occurred, and require partners also to explicitly follow the TCPA.
• Make sure to review and categorize messages to separate those that are sales in nature and those that are just informational, since the TCPA only applies to the former. When informational messages are sent, be very self-consciously content-neutral to avoid making the message a roundabout sales pitch; this is a sure way to get ensnared in a TCPA lawsuit.
• Treat every device as an automatic dialer and therefore subject to the TCPA, as the FCC now classifies any device that can store numbers and randomly make calls as an autodialer. So that makes most devices fall under the definition. Play it safe by considering every device an autodialer.

Telemarketing is, of course, still legal. But the FCC is serious about compliance with the TCPA and not having consumers harassed by telemarketing messages. So every business that uses telemarketing needs to take pains to ensure it has not fallen afoul of the regulations.