TCPA Risk Violations Loom Large for Anyone Dialing Out
August 21, 2015
By Tracey E. Schelmetic, TMCnet Contributor
The Federal Communications Commission (FCC (News - Alert)), which oversees the TCPA, is obliged to periodically issue declaratory rulings to clarify certain texts of the law, particularly as it applies to newer technologies. Just recently, the agency released a Declaratory Ruling and Order to address 21 separate requests for clarification and other action regarding the TCPA. Most of these requests were made by businesses unsure if their existing business practices are compliant with the Act. The news may not be good for broadcasters, in particular.
According to Josh Bercu, an attorney with Wilkinson Barker Knauer LLP, the large fines that can come from violations of the TCPA has many law firms seeking plaintiffs for lawsuits and class action activity. For this reason, companies that have traditionally reached out to customers or an entertainment audience – broadcasters come specifically to mind – need to be careful about how they do so. The clarifications mean that many well-intentioned companies, including broadcasters, at risk as they try to contact their viewers and listeners.
“The burden is on the broadcaster to establish that appropriate consent was obtained before a call or message,” wrote Bercu. “For non-telemarketing calls and text messages to wireless numbers, the consent can be oral or written, and there are no specific requirements for what the consent must say. In fact, in certain circumstances, a consumer providing you his or her wireless number may indicate consent. However, the burden is on the broadcaster to prove it had consent to make the call or send the message in the event a consumer complains. So, it is safest if, when you gather telephone numbers with the intent of using them for station marketing purposes, you make explicit what kinds of messages that you can send to people who have provided their numbers.”
Many companies believe that since they’re not “selling” anything, they are exempt from using outbound autodialers, calling mobile phones or using robocalls. This isn’t necessarily true, and the fines can be exorbitant: violations of the TCPA can result in civil liability of $500 to $1500 per call or text plus FCC fines. It’s not only the telephone that broadcasters and other “non-selling” entities need to worry about. According to the FCC, outbound text messages are essentially the same as outbound telephone messages, and can draw the same large fines.
In order to protect themselves, broadcasters must ensure they have the consent of listeners before they call them, text them or target them with robocalls. This consent must be in writing, and prior consent obtained in years past may not be good enough (particularly if it was obtained before October 16, 2013), though the Order does permit anyone making outbound communications to rely on already-provided written consents that do not satisfy the new rule, until October 7, 2015. After that, companies will be even more at risk, so it’s critical they evaluate their permissions and policies.
“If you plan to keep making and sending telemarketing calls and texts to consumers, make sure to obtain new written consents that satisfy the disclosure requirements before the deadline,” wrote Bercu.