It is very important for businesses to obtain consent to call folks. Not only is it the law, but the federal courts have declared so.
What is the TCPA?
Companies may be liable under federal law known as the Telephone Consumer Protection Act (TCPA) for either (1) calling a person using an automatic telephone dialing system (ATDS); or (2) calling a number registered on the federal Do Not Call (DNC) list.
What is the Safe Harbor?
A business as a defendant will not be liable for (1) using an ATDS, or (2) calling or texting a number on the DNC Registry, if they obtain prior express written consent signed by the recipient of the communication. In a 2012 Report and Order, the Federal Communications Commission allowed the use of website forms, email, text messages, telephone key presses and voice recordings to obtain prior express written consent, as long as the consent complies with federal guidelines found in the E-Sign Act.
The TCPA safe harbor found in the US Code allows a defendant to raise the affirmative defense that it has “established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.” Businesses can potentially avoid liability for a TCPA violation by showing that the call was placed in error and that they had routine policies and procedures in place designed to avoid a violation.
What is the E-Sign Act?
The E-Sign Act provides that “a signature, contract, or other record relating to such a transaction may not be denied legal effect, validity, or enforceability solely because it is an electronic form.” Valid consent under the act must provide, among other things, a “clear and conspicuous statement” establishing (1) the right to withdraw consent, (2) the scope of the transaction to which the consent applies, and (3) the procedures to withdraw consent.
Cases such as Johansen v. EFinancial, LLC show the need to have proper policies and procedures in place to benefit from the safe harbor. Companies should assess their TCPA compliance plan, follow it, and develop one if it does not already exist.
In addition, a safe harbor can be created for a business by using website forms and other electronic means to obtain prior express written consent. But any such method must comply with the E-SIGN Act by properly disclosing that a consumer is providing consent to be contacted, the scope of the consent provided, and methods to withdraw it. Also, companies should verify that the person they are calling is the same person who provided electronic consent.
For More Information
If you have any questions about the TCPA or other rights that businesses and consumers have when interacting via online or telephone communication, contact a consumer protection lawyer, such as our friends at Lehner Law LLC.