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06.28.21

IAPP Global Privacy Summit 2021: TCPA compliance after SCOTUS ruling in Facebook

BY Dan Deane

Even after SCOTUS’ ruling in Facebook, Inc. v. Duguid, the Telephone Consumer Protection Act (TCPA) retains many robust consumer protections. Consumer-facing businesses must remain vigilant to ensure compliance with the TCPA as well as the web of other similar state and federal laws that govern in this area. Case law since the Supreme Court’s ruling already shows that consumer class actions lawyers aren’t willing to let go of the TCPA just yet.

Below are a few of our tips for compliance and risk mitigation for businesses that send calls, text messages, instant messages, direct drop messages, faxes, and other telecommunications to their customers and prospects:

Consent remains king

  • Get consent in your customer agreements or other relationship initiating documents
  • Make consent to autodialed and artificial voice or prerecorded calls explicit
  • Make consent to call/text mobile phones explicit
  • Require your customers to confirm and update their phone numbers
  • Mandate methods to revoke consent in bi-lateral contract
  • Include an arbitration clause with class waiver

Policies and procedures, training, recordkeeping

  • Provide a clear and easy “opt-out” system and ensure prompt compliance
  • In live conversations, confirm number on file is “best number” to call
  • Never mix messages (marketing and informational)
  • Maintain call history/record calls
  • Maintain good consent records
  • Scrub database for mobile numbers and numbers on the Do Not Call registries
  • Scrub for reassigned numbers
  • Vet your vendors; don’t forget your business can be held vicariously liable for violations of others acting on your behalf
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Dan Deane

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