SUTHERLAND’S THREE CS: CONSENT, COMPLIANCE, COMMUNICATION

What is the TCPA?

The Telephone Consumer Protection Act of 1991 (TCPA) protects consumers from unwanted telemarketing calls, prerecorded or autodialed calls, fax transmissions, and text messages. 

What are the penalties for violating the TCPA?

Violations of the statute can lead to significant financial consequences: a $500 penalty per communication (or $1,500 if willful).

How a can company protect itself from TCPA lawsuits?

Sutherland’s Three Cs approach provides an overview of best practices for reducing litigation risk.

CONSENT:  Obtain the appropriate consent

Get consent for marketing communications

For automated marketing calls, obtain written consent. Under TCPA regulations, “prior express written consent” requires a written agreement, signed by the consumer, that includes among other things the telephone number, that specifically authorizes telemarketing by automatic dialing/texting or prerecorded voice, and that is not required as a condition of purchase.

Get consent for non-marking communications

A consumer has generally consented to receive non-marketing communications if they have given their number for a specific purpose or in connection with a specific transaction.

  • The scope of the consent extends to communications related to the transaction or purpose for which the consumer provided the number.

Check the Do Not Call registry

Consumers who do not want to receive telemarketing calls can register their numbers on the National Do Not Call registry.

  • Maintain written procedures for checking the Do Not Call registry.
  • Also maintain a company-specific do-not-call list for consumers who have requested not to be contacted. 

COMPLIANCE:  Strict compliance with TCPA regulations is essential

Maintain a record of consent

Keep a current record of consumers who have consented to receiving communications and the type of communications to which they have consented.

  • Create internal procedures for referring to the record before to initiating communications.

Offer an opt-out

Include an opt-out mechanism for consumers who do not wish to receive further marketing communications.

  • Ensure that opt-out notices meet the specific and detailed requirements set forth in TCPA regulations, which vary by the type of communication. 

Honor requests to stop calling

Maintain a procedure for ceasing calls to a number at recipient’s request.

COMMUNICATION:  Best Practices

Limit the number of repeat calls

A consumer who receives only a few calls is much less likely to complain or bring suit.

  • Avoid making multiple calls or leaving multiple pre-recorded messages on the same day, and limit the total number of calls to the same number.
  • Most TCPA litigation is initiated by consumers who have received numerous automatic calls.

Avoid calling at inconvenient hours

This is a best practice for all types of communications.

  • TCPA regulations expressly prohibit telemarketing calls before 8 a.m. or after 9 p.m. (local time at the called party’s location). 

Be respectful of the consumer

Even if a consumer has consented to the communications, use common sense and be courteous to the called party.