TCPA compliance checklist: Best practices for your marketing

You have a product or service you can’t wait to share with potential customers, and you’re ready to market it. Before you start sending out emails or text messages (SMS) or making phone calls, sit down with your legal team and make sure you have considered every marketing law and regulation. One important best practice is checking off the items on your TCPA compliance checklist. 

The Telephone Consumer Protection Act (TCPA) was established in 1991 and aims to protect consumers from receiving solicitations from businesses without consumers’ consent. Because of concerns with data privacy and data protection, the rules and regulations change constantly; if you aren’t careful, you could face expensive lawsuits or fines if a consumer claims they did not give consent to be contacted. The last thing you want is for a lead to sue your company.

What is TCPA compliance?

TCPA compliance refers to adhering to the Telephone Consumer Protection Act, a crucial regulation designed to protect consumers from unsolicited calls, texts, and faxes. Businesses must obtain explicit consumer consent before initiating telemarketing communications, maintain do-not-call lists, and ensure time restrictions on calls to avoid hefty penalties. 

Compliance is not only a legal requirement but also a best practice to foster trust and maintain a positive reputation among consumers. Adhering to TCPA guidelines helps mitigate legal risks and enhances customer relations, making it a fundamental aspect of responsible business operations.

TCPA compliance guide: What’s on the TCPA consent compliance checklist?

By using a TCPA consent compliance checklist as a TCPA compliance guide, you can use more technologies that adhere to TCPA marketing laws and TCPA SMS compliance to make your marketing operations more efficient and cost-effective. 

TCPA checklist

• Obtain and store prior express written consent
• Use clear disclosure language
• Opt-in follow-up requirements
• Include an opt-out option
• Only contact during business hours
• SMS protections

Ensure that you are properly capturing and storing proof of consent

• Provide proof the consumer gave consent by checking the box or completing the form.
• Provide a visual record of the TCPA disclosure language the consumer viewed with a session replay solution that makes it easy to identify consent language and the consumer’s action of providing their consent (i.e., entering requested information, checking the consent box, and pressing the “Submit” button).
• Documentation should be collected and stored by a reliable independent third party so that it can’t be manipulated.
• Documentation should be easily accessible and shareable.
• Perform periodic audits (spot checks) of your consent documentation to confirm that your protection is reliable.
• If buying leads from partners, make sure your document of consent matches the lead you purchased.
• If buying leads from partners, verify consent in real time before you call the lead. 

Learn more about the importance of TCPA consent.

Use clear, concise, and informative disclosure language 

• The disclosure language (i.e., the terms and conditions the customer is agreeing to by submitting the form) is clear and easy to understand (no “legalese”).
• The disclosure statement is clearly visible in the immediate vicinity of the opt-in button. 
• The disclosure statement states the identity of the company that will contact the consumer.
• The disclosure statement states that communication may be in the form of an SMS (text) or automatic dialing system (ATDS).
• If you’re pre-recording the call, this is clearly stated in the disclosure.
• The disclosure states that opting in is not a requirement to take advantage of the offer.
• The disclosure states the approximate number of calls and text messages the consumer may receive.
• Work with your privacy, legal, and design teams to determine the most reasonable, balanced way to meet webpage notice and consent language compliance requirements.
• Review any TCPA disclosure statements with your legal department to make sure that the statement follows your company’s legal and compliance requirements.

TCPA opt-in requirements

• Once a customer opts in to your messages, send a detailed disclosure message.
• The opt-in confirmation should include:

1. Your business name.
2. The purpose of the messages.
3. How often texts will be sent (daily, weekly, monthly).
4. Notification of possible text and data rates.
5. A link to the full terms and conditions.
6. Directions for getting help if needed.
7. Steps to opt out of future messages.

TCPA opt-out requirements

• Under the TCPA, ensure your business offers a straightforward opt-out method for messages.
• Implement a ‘STOP’ response feature that allows customers to text ‘STOP’ to halt SMS communications.
• Regularly remind subscribers of the opt-out process by including ‘STOP’ instructions in every message sent.

Discover the latest requirements of consent revocation now.

TCPA calling hours

• Businesses should not text or call subscribers before 8:00 AM or after 9:00 PM.
• Avoid contacting customers outside these hours to prevent complaints and potential issues.

TCPA compliance checklist (SMS)

• Under the TCPA, text messages are treated the exact same as calls. Observe and follow all of the rules and requirements accordingly, beginning with obtaining and documenting prior express written consent before sending any communication. 

What happens if you violate TCPA regulations?

Your company could face up to a $1,500 fine per call or text message. 

Not all lawsuits are large class-action ones; individuals file smaller lawsuits as well. The ones who file the most lawsuits are known as “serial litigators.” They claim TCPA violations and usually settle out of court for amounts ranging from $10,000 to $250,000. 

What is the best way to comply with the TCPA?

Many marketers think obtaining consent is too complicated, so they follow ineffective strategies, such as scrubbing all their leads against the national DNC list or avoiding the use of SMS technologies or pre-recorded messages; however, these methods waste a lot of time and money–plus, they open companies up to the risk of legal issues.

The best way to comply is to only reach out to opt-in leads who have given their consent to be contacted–and make sure you have documented that consent. 

Prior express written consent: Why do I need it?

The best proof of consent a business can have is prior express written consent. “Written” means language can be hardcopy or electronic. “Consent” is the acknowledgment of the language by an opt-in action from the consumer (i.e., checking a checkbox) near their contact info and/or the submit button on a web page form (avoid pre-checked checkboxes, as this does not meet the opt-in or “express” consent action requirements). This is a written agreement, acknowledged by the consumer, to receive a phone call or text message from your company; this agreement includes a clear and obvious disclosure that permits your business to send marketing communications. Save a record of this consent to contact for a period of 2 to 5 years in case there is an inquiry or legal action.

Prior express written consent can also supersede the national Do Not Call list (DNC), meaning you have one less obstacle to worry about. The biggest benefit? Contacting people who want to be contacted, which ultimately improves your conversion rates. 

What can you do to protect your business from TCPA consent litigation?

Many litigators assume you’re not going to have documented written consent and think it will be easy to sue you and get a settlement. If you want to avoid paying hefty fines, you need to properly collect consent, document that consent, and be able to quickly access the documentation.

TrustedForm is a lead certification product that documents consent for each individual lead. When our Web SDK (also known as a web script) is placed on a web form, ActiveProspect is able to independently verify where and when consumers provided their information and consent to contact using a web form by capturing the events and providing an instant session replay showing the consumers’ exact actions.

With TrustedForm, you can verify, document, and archive the consent transaction for compliance with data regulations like TCPA; verify you are receiving authentic leads from interested consumers; and verify your brand is being properly represented on approved sites.

Our TrustedForm certificates provide unbiased third-party documentation of consent. This proof of consent can protect you in the event of litigation while giving you new confidence that your leads have actually asked you to contact them.