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Telephone Consumer Protection Act (TCPA) FAQ

Telephone Consumer Protection Act (TCPA)

We are also providing some links to other resources that may be helpful to you to get an overview of the TCPA SMS and Voice Mail regulations.  

We do strongly recommend that you talk with your business attorney about how to get specific advice for your business. 

 

Here are some links we have found helpful:

http://www.mofo.com/files/Uploads/Images/130108-Telemarketing-Rules-Take-Effect-2013.pdf

http://www.mintz.com/newsletter/2012/Advisories/2355-1012-NAT-COM/index.html

http://www.kleinmoynihan.com/publication/new-tcpa-rules-effective-october-16-2013/

 

TCPA FAQ

 

1.         What is the Telephone Consumer Protection Act (TCPA)?

Generally speaking, the TCPA sets ground rules for sending messages to consumers by telephone, fax and text.  The law places restrictions on telemarketing messages, as well as informational messages.  Violations of the TCPA can give rise to costly and significant lawsuits, as well as enforcement actions instituted by the Federal Communications Commission (FCC).

The TCPA applies whether a call or message is sent by voice, SMS and MMS.  The information provided below generally applies to all of those communication types. 

 

2.         What are the new regulations, effective in October 16 of 2013?

In February 2012, the FCC adopted new regulations applicable to sending autodialed and/or prerecorded telemarketing messages to both landline and wireless telephone numbers.  Effective October 16, 2013, it will be unlawful to send any such messages to a consumer unless the sender has the consumer’s prior express written consent

 

3.         What constitutes prior express written consent?

The term prior express written consent means an agreement, in writing, signed by an individual that clearly authorizes the delivery of advertisements or telemarketing messages to that individual’s phone using an automatic telephone dialing system or an artificial or prerecorded voice. 

The consent must include the telephone number to which those authorized advertisements or telemarketing messages may be delivered.  It must also include a statement that signing the agreement is not required to obtain any goods or services.  Finally, the manner in which consent is obtained must be “clear and conspicuous” to the individual giving the consent.

The consent may be “signed” electronically or digitally, as long as that form of signature would be recognized as enforceable in the applicable jurisdiction where the consent was signed.  So, a person can sign a consent using any number of methods (e.g. a website form, email or voice recording) as long as the method is recognized by law as valid. 

 

4.         Do the new regulations affect informational messages?

No.  The FCC’s new regulations only affect autodialed and/or prerecorded telemarketing messages (including voice, SMS and MMS sent for telemarketing purposes).  To note, prior express consent is still needed to send autodialed and/or prerecorded informational messages to a wireless telephone number.  No consent is needed to send autodialed and/or prerecorded informational messages to a landline telephone number. 

In the past, for all calls, the FCC has said that people who knowingly release their phone number have in effect given their permission to be called at the number, which they have given.  Within the industry, there is debate whether the new regulations will require companies to go back and get more specific permission from those individuals on their marketing lists.  Some industry groups are working to obtain clear guidance from the FCC on that point.  Because of differing points of view on this issue, this is a particularly important point to discuss with your attorneys.    

 

5.         How do I determine if my messages will be considered informational or telemarketing?

Under the FCC’s regulations, the term “telemarketing” is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 

However, even if your message does not explicitly promote a property, good or service in the message itself, it can be considered a dual purpose telemarketing message if the underlying goal of the message is to have a consumer purchase something ultimately.  The FCC has given some examples of messages that are “informational”:  a bank account balance, a credit card fraud alert, notice of a package delivery, and school closing information.  Senders are responsible for determining whether their messages are “informational” or “telemarketing”.   It’s not always an easy judgment call.  Getting legal advice is always recommended, even if your message fits one of the FCC’s examples.

 

6.         Does the TCPA contain any other requirements?

Yes.  Although this is not an exhaustive list of the additional requirements found in the TCPA, the TCPA does contain additional obligations beyond obtaining the appropriate level of consent to send autodialed and/or prerecorded messages.  For example: 

  • All prerecorded voice telephone messages should provide the identity of the business that is responsible for initiating the call at the beginning of the message. 
  • During or after the prerecorded message, the business making the call should  clearly state its telephone number, where it can be reached.
  • For all prerecorded telemarketing voice messages, the business sending the message is required to provide an opt-out mechanism for the called person to make a do-not-call request.  The opt-out should include brief instructions on how to use this mechanism (e.g. automated, interactive voice- and/or key press-activated) within two (2) seconds of providing the business’ name (required at the beginning of the call). 

 

7.         Is the TCPA the only law I need to consider?

No.  There are many laws that relate to the use of telecommunications to send messages.  Your company should get legal advice concerning the legalities of any messages, calls, broadcasts, and campaigns that you wish to implement.  Some sites that include information about those laws are:

Federal Trade Commission, http://www.ftc.gov

Federal Communications Commission, http://www.fcc.gov

DoNotCall Registry Info, http://www.donotcall.gov

 

The TCPA, the Federal Trade Commission, the Federal Communications Commission, the Do Not Call list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations all place restrictions on certain types of phone calls and text messages.

InstantCustomer.com is happy to provide this FAQ to you.  We are not in a position to interpret any laws, rules, or regulations and is providing this information only as a courtesy.  It is very important that you seek legal counsel for any questions about how the TCPA and other laws will apply to your company’s specific practices. 

 

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