We have covered the Telephone Consumer Protection Act (TCPA) in two previous blogs. See here and here.  In this post, I want to dig deeper into how to avoid liability.

The TCPA is the law designed to protect us from obtrusive and generally unwelcome calls to our cell phones. The law specifically prohibits making calls using an automatic telephone dialing system or an artificial or prerecorded voice to deliver a non-emergency message, without obtaining prior express consent.  This seems to be an excellent idea, but what effect does this law have in the context of marketing to customers and collecting accounts?

The penalty for violation of the TCPA can be jaw-dropping—as much as $1500 for every call placed to a customer in violation of the law. Because there is such a large potential recovery for plaintiffs’ lawyers, the issue of consent and revocation of consent continues to be a major headache for defense lawyers.  Here’s what you can do to make your defense lawyer’s job more manageable and protect your company:

  1. Obtain the “express consent” of the customer in the customer’s loan application to receive cell phone calls in connection with accounts. This consent should be wide-ranging, covering both collection of accounts as well as calls for marketing purposes.  The consent should include the authorization to contact the customer by any and all means—personal, telephone, text, email, and whatever new technology comes next.  The consent should also authorize that the format of the contact may be made by a live operator, automatic telephone dialing system, pre-recorded message, text message, or email.
  2. State the fact that the express consent authorization is “specifically bargained for consideration” as part of the transaction between the finance company and the customer.  This is a pretty technical issue, but one that can be the difference in successfully sustaining the revocation process if needed.
  3. Set forth the specific method and manner for revoking the consent.  In so doing, the prior express consent should not be effectively revoked unless the customer follows the revocation protocol. This affords the consumer finance company the ability to more readily flag those customers who have revoked consent pursuant to the TCPA.

While there are still other arguments that TCPA plaintiffs’ lawyers will make to argue the absence of consent, or the revocation of consent, by following these three steps, we will be in a much stronger position to maintain that the finance company has not violated the law.

Please note: This is the seventy-third blog in a series of Back to Basics blogs, in which relevant and resourceful information can be easily accessed by clicking here.