Even after SCOTUS' ruling in Facebook, Inc. v. Duguid, the Telephone Consumer Protection Act (TCPA) retains many robust consumer protections. Consumer-facing businesses that intend to expand their text and telemarketing campaigns in the wake of Duguid need to remain vigilant in ensuring compliance with certain aspects of the TCPA as well as the web of other similar state and federal laws that govern in this area. Additionally, the FCC's new regulations promulgated under the TRACED Act add further consumer protections and compliance obligations.
Below are a few of our tips for compliance and risk mitigation for businesses keeping in touch with customers or prospects through telephone calls, text messaging, instant messages, faxes, and other similar communication platforms:
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 their phone numbers, that they will provide written notice of a phone number change, and indemnification
- Mandate methods to revoke consent in bi-lateral contract
- Include an arbitration clause with class waiver
Policies & Procedures, Training, Recordkeeping
- Provide a clear and easy "opt-out" system and ensure immediate compliance with "opt-out" or "stop" requests
- In live conversations, confirm number on file is "best number" to call
- Never mix messages (marketing and informational)
- Maintain call history/record calls
- Maintain records proving consent for 4 years (or 4 years after customer relationship ends)
- Scrub database for mobile numbers and numbers on the Do Not Call registries
- Watch out for reassigned numbers (utilize the FCC's reassigned numbers database when it launches)
- Your business can be held vicariously liable for the violations of vendors, contractors, affiliates, partners, licensees, and franchisees. Make sure to vet your business partners carefully and receive their written assurances (and indemnification if possible) that they will comply with all telemarketing laws, including the TCPA.
For more information, we recommend watching our recent virtual session.
As communication technologies evolve, NP's TCPA & Consumer Privacy team helps businesses connect with consumers while avoiding exposure from consumer protection laws such as TCPA and similar state laws.