If you own a business and receive a phone call or a letter from a consumer claiming you have contacted them without their consent, your first instinct is likely to worry. The consumer’s communication may indicate that they never asked to receive information from you about your product or service. They may throw in your face the weight of the Telephone Consumer Protection Act (TCPA), which limits the use of automatic telephone dialing systems (ATDS), voice messages, SMS text messages, and fax machines to contact consumers.
The TCPA is a law designed to protect consumers from unwanted telemarketing solicitations and requires that consumers provide prior express written consent in order to receive a text message or a call on their cell phone using an ATDS or pre-recorded message. A TCPA violation can cause you to incur penalties of $500 per incident (willful violations can cost $1,500 per incident). That can add up quickly!
Don’t panic about costly litigation, though; by having proof of consent to contact a consumer and following the below steps, you can help to protect yourself and determine whether this situation is an actual threat.
Best practices for handling a possible TCPA complaint
Many people refer to a consumer’s informal contact with them as a complaint, but the accurate term here is a warning. Such a warning may precede a “demand letter” written by an attorney or the consumer themselves. The demand letter is a more formal contact to try and resolve an issue and provide warning that a lawsuit is likely coming soon if the issue is not resolved. On the other hand, a complaint is a formal filing in a court of law for instigating a lawsuit.
This article focuses on the initial warning, which is informal and can occur via a phone call or a letter but holds no legal weight and is not an official step in the litigation process. Keep in mind that this type of warning may not occur at all and a consumer might skip straight to sending a demand letter.
Although you likely would not face legal repercussions if you chose not to investigate this warning further, the following steps, though not defined by the TCPA, are best practices for protecting yourself and erring on the side of caution.
Step 1: Respond to the consumer in a timely manner
The first thing you should do is respond to the consumer’s warning in a timely manner and try to obtain as much information from the consumer as you can. The most important piece of information to seek here is the consumer’s phone number (and it must be the phone number at which you supposedly contacted them). If they cannot or refuse to provide this, then the entire warning is likely moot! If you choose to ignore the consumer at the warning stage, there is a good chance the consumer will move on to sending a formal demand letter.
Step 2: Be courteous
It may be that your first reaction to being accused of violating the TCPA is one of anger or frustration. Just remember – cooler heads tend to prevail! Have a conversation with the consumer to let them know your company takes privacy and compliance seriously and it is not your standard practice to contact anyone without their consent. A calm discussion is likely to yield you the most information from the consumer so you can decide whether an actual violation occurred.
Step 3: Check your consent documentation for this consumer
If your company markets to consumers by contacting them on their cell phones by call or text, you should be following all the applicable regulations including documenting consent. If you have documentation that proves the consumer consented to be contacted, use this tool to your advantage and gather the evidence.
Your best defense is a TrustedForm Certificate. A claimed TrustedForm Certificate provides unbiased independent proof of consent to contact. It includes information like a timestamp, geographical location, IP address, and even a Session Replay of the consumer entering their information on a form – such as their phone number, which must match the one they provided to you – and clicking the disclosure box (meaning they have agreed to be contacted). Simply search your CRM for the consumer’s phone number and find the associated TrustedForm Certificate URL stored with it.
If you do have a TrustedForm Certificate showing the consumer consented to be contacted, then you can move on to Step 4. If you do not have a TrustedForm Certificate for the consumer, it is best to try and work out a resolution or compromise with the consumer.
Step 4: Notify your legal and compliance teams that a consumer has alleged a violation of the TCPA
Your legal and compliance teams will likely take additional actions such as confirming whether the consumer is registered with the national “Do Not Call” (DNC) database and within your company’s own DNC database. A key point to note is that even if a consumer is on the DNC list, if they opted in to be contacted, then that action – with proof from your documentation, like the TrustedForm Certificate – can supersede their DNC registration status.
Step 5: Respond to the consumer and detail that you have proof that they consented to be contacted
Let the consumer know that your company only contacts consumers that have requested to be contacted. Inform the consumer you have documentation of their prior express written consent to be contacted. A TrustedForm Certificate is one helpful tool in building your defense against any formal litigation. Be empathetic to the consumer because even though you have a TrustedForm Certificate documenting consent, it is still possible that someone else might have input their information into the form. Offer to add them to your internal DNC so that they won’t receive any additional calls (unless of course you receive another request from them to be contacted).
You can contact the consumer in writing or via telephone if the consumer’s letter indicates that they are willing to be contacted by telephone.
Step 6: If requested, provide a copy of the documentation to the consumer
If you use TrustedForm, a claimed TrustedForm Certificate includes a “Share URL” that will allow the consumer to view the Certificate without having to log into an account. From there, the consumer will be able to see the session replay of the actions they took while filling out the web form. As a part of the TrustedForm Consent product, the Certificate will have a section titled “Consent Language Detected,” which includes the text of any consent language scanned and discovered on the web page, and can be used in your favor as proof of consent to be contacted.
With a TrustedForm Certificate, you will be able to see detailed information about the lead, and with this type of evidence, you are helping to defend yourself from legal issues. If you’d like to see an example of the Certificate and its session replay, check out a demo.
If you receive a potential TCPA complaint, your best defense is a TrustedForm Certificate
By following the above steps, you have a strong case against a consumer’s warning. Ideally, you will not receive a formal complaint or demand letter, but by arming yourself with a TrustedForm Certificate, you can present solid proof that a consumer expressed an interest in your products or services and agreed to be contacted.
If you are interested in seeing how our platform can help you remain compliant with TCPA regulations, schedule a demo today!