Trying to keep up with the TCPA guidelines is almost like chasing a moving target – the scope and framework of the regulation undergo constant changes.
Despite its revisions, calling and text messaging technology evolve at a much faster pace and the TCPA statute tends to lag the pace of innovation. As a result, the Federal Communications Commission (FCC) blankets all new technology with more or less the same provisions since the inception of the TCPA in 1991 - until now.
Nevertheless, no matter how fast-moving it seems, staying on the right side of the law and making sure your customer outreach campaigns are not violating the TCPA rulebook is of utmost importance.
Because the penalties for TCPA violations are serious - a minimum of $500 per call or text message and as high as $1500 per call or text message if you violate the statute willfully. You’re potentially looking at a multi-million dollar exposure for every violation.
To help you understand these nuances and figure out how they apply to your business, our Director of Customer Success, Nick Cahill, hosted a very special webinar with the TCPA Czar himself, the legendary Eric J. Troutman.
Having served as legal counsel in over 150 nationwide class actions and litigated over a 1000 individual TCPA suits, Eric is THE authority in the TCPA space. He also regularly advocates to the FCC and Congress for TCPA reform and helps his clients understand the intricacies and pitfalls of this critical legislation. Additionally, Eric is also the lead author and editor at TCPAWorld, a blog that gives a detailed analysis of TCPA cases and is really an encyclopedia on the TCPA landscape.
“On the whole, the TCPA seems like such a simple statute – but in reality, it’s exceedingly ambiguous. The huge run-up of TCPA cases that we’re now seeing in federal court is shifting the law in one way or the other. The judge-specific evolution of the TCPA law is happening in a patchwork fashion and that’s what continues to make its scope so vague and the process of deciphering it so confusing.” - TCPA Czar, Eric J. Troutman
Here are some key takeaways from the webinar:
TCPA in the context of automated outreach platforms
In this mass of ambiguity, there’s one thing that’s crystal clear- if you’re in the customer outreach game, you fall under the purview of the TCPA statute. If you’re using any form of an automatic telephone dialing system (ATDS) for your customer communication, you have to obtain the right level of ex consent from your customers before you send a message or make a call. In the context of TCPA, the customer whose consent you should obtain refers to the subscriber of that particular phone number.
TCPA in the context of manual outreach platforms
If you are using a one-to-one business messaging platform whereby sufficient human intervention is needed to reach out to a customer, then the TCPA does not apply to you. You can manually contact a person on their mobile device without their consent for informational and marketing purposes with a very important exception – the Do-Not-Contact (DNC) rules.
The FCC created the National Do Not Call Registry, also known as the DNC, and put in place regulations that prohibit telemarketers from contacting customers on that list. To interact with people on this list, even if done on a one-to-one basis, you have to have either an established business relationship, some sort of an inquiry or express written consent.
TCPA and the ATDS ambiguity
Pre-recorded calls from random or sequentially generated numbers without consent are prohibited by the TCPA. Period. But that’s the extent of clarity the legislation presents when it comes to the definition of ATDS and its scope.
There are various schools of thought when it comes to the interpretation of robocalls and different judges paraphrase the definition and apply it to different contexts in different ways. That creates a whole lot of ambiguity on what’s classified as a robocall made using an ATDS and what’s not. The matter is currently under the consideration of the Supreme Court as a part of a petition brought by Facebook where the court will decide the right reading of the definition of ATDS.