If you have been regularly following this blog or have received a copy of our recent publication, you are aware that the Federal Communications Commission (FCC) has been strictly construing and enforcing the Telephone Consumer Protection Act (TCPA), oftentimes securing multi-million dollar judgments against the defendants.   In this post, we address the consent requirements for robocalls and text messages under the TCPA, which have caused industry-wide concerns.

TCPA Consent Generally

As we have previously detailed, under the TCPA, consumer consent must be obtained by businesses that wish to make robocalls and send text messages to consumers.  The consumer’s consent to receive such solicitations must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that he/she will receive future calls/text messages that deliver autodialed and/or pre-recorded telemarketing messages; that his/her consent is not a condition of purchase; and he/she must designate a phone number at which to be reached.

Forthcoming TCPA Consent Requirements

Beginning October 16, 2013, prior express written consent will be required for all autodialed and/or pre-recorded calls/text messages made/sent to cell phone and residential land lines for marketing purposes.  There are many ways that a business may obtain written consent, but there must be some sort of affirmative act undertaken by the consumer that evidences his/her understanding of the implications of his/her consent and his/her agreement thereto. Compliance with the E-SIGN Act satisfies this requirement, meaning that electronic or digital forms of signature are acceptable (i.e., agreements obtained via email, website form, text message, telephone key press or voice recording).

How to Protect Your Business

If a dispute concerning consent arises, the marketer bears the burden of proof to demonstrate that a clear and conspicuous disclosure was provided and that the consumer unambiguously consented to receive robocalls or text messages to the number he/she specifically provided.  It is a best practice for marketers to get in the practice of collecting written consent from consumers as soon as possible.  Not only will businesses be required to do so beginning in October, but having written consent provides a tangible and strong defense that adequate consumer consent was obtained. Furthermore, it is recommended that records of each consumer’s consent be maintained for at least four (4) years, which is the default federal statute of limitations to bring an action under the TCPA.

Evidence of Internet-provided written consent includes, but is not limited to, website pages that contain consumer consent language and fields, associated screenshots of the consent webpage as seen by the consumer where the phone number was inputted, complete data records submitted by the consumer (with time and date stamp), together with the applicable consumer IP address.

TCPA Penalties

The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/text message.   In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.  Considering that telemarketing and text message campaigns often involve thousands and, in some cases, millions, of calls/text messages, potential penalties sought by the FCC under the TCPA may escalate very quickly.  Moreover, companies that fail to comply with the TCPA may find themselves facing consumer class action litigation.