TCPA violation
What is a TCPA violation?
A potential TCPA violation occurs when a business contacts a mobile phone number using an automatic telephone dialing system (ATDS), recorded messages, text messages, or faxes without first securing prior express consent. A potential TCPA violation can also occur if unsolicited calls are made to residential phone numbers included on the national Do No Call list (DNC)
Essentially, this means that the company is potentially violating TCPA regulations by making unsolicited calls, sending unsolicited automated marketing text messages, or using robodialers to deliver numerous prerecorded messages.
The Telephone Consumer Protection Act (TCPA) is focused on safeguarding consumer rights and privacy in the U.S. related to telephone communications. It emphasizes the need for consent to be presented and collected before making telemarketing calls or sending automated text messages. Additionally, the TCPA established the National ‘Do Not Call’ (DNC) list, allowing individuals to opt out of receiving calls on registered phone numbers. Companies must check if a number is on the national DNC list before making any calls.
What can lead businesses to TCPA violations?
- Misunderstanding consent definitions: At its core, TCPA consent involves obtaining explicit written consent from consumers before contacting them for marketing promotional purposes. Some companies falter in providing adequate consent notification language to consumers or struggle to demonstrate that consent was indeed granted by the individual.
- Neglecting Do-Not-Call list screenings: The National Do-Not-Call (DNC) registry serves as a crucial tool for telemarketers. Failing to screen lead databases against this registry can lead to reaching out to individuals who have explicitly refused to receive unsolicited marketing communications.
- Inadequate maintenance of records: Maintaining meticulous records is imperative for TCPA compliance. Without up-to-date and well-documented consent records, lead sources, and call histories, companies may struggle to demonstrate compliance with TCPA regulations.
- Managing call frequency and timing: The FCC’s TCPA rules and the FTC’s Telemarketing Sales Rules (TSR) outline guidelines on the allowable frequency and timing of consumer calls. Adhering to these regulations necessitates robust scheduling and monitoring systems to avoid violations. Additionally, individual state regulations on call times and frequencies must be consulted and implemented.
- Absence of internal compliance protocols: In the absence of rigorous compliance measures, there is a heightened risk of oversight or negligence concerning TCPA obligations. Sales and Marketing departments may inadvertently overlook compliance standards, leading to inadequate audit mechanisms that expose businesses to potential TCPA violation allegations.
Possible TCPA violations fines and penalties
The consequences of violating the TCPA are significant, primarily due to the principle of strict liability. In fact, companies can be held legally responsible for violations regardless of their intent or fault, and they may face unlimited damages. Both the Federal Communications Commission (FCC), US State Attorney Generals and individual consumers have the right to take legal action against potential violators. Penalties can range from considerable fines to large class-action lawsuits.
Fines for violations typically range from $500 to $1,500 per call or text message, which can lead to multimillion-dollar liabilities for large-scale marketing efforts. These amounts are not just alarming statistics. For example, in April 2023, a Florida court provisionally approved a $40 million settlement in a class-action lawsuit against a privately owned real estate company for allegedly violating TCPA regulations.In addition, penalties for TCPA violations extend beyond just financial consequences—businesses also risk suffering irreparable damage to their reputation and a lasting decline in customer trust.