The Telephone Consumer Protection Act (TCPA) is a federal statute that places restrictions on telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic telephone dialing systems (ATDS), artificial-voice and prerecorded-voice messages, SMS text messages, and fax machines. The TCPA has been a significant source of class action activity in recent years as businesses seek to navigate and plaintiffs’ attorneys seek to exploit the uncertainties surrounding the law. If your business has taken anything less than a rigorous approach to the TCPA, now is as good a time as any to tighten up your compliance practices. Here are five TCPA compliance tips to help ensure that your business operations and practices are fully compliant.
1. Draft TCPA policies and procedures
Draft and implement written policies and procedures to ensure that your organization adheres to TCPA and Do-Not-Call list requirements. Your policies should contemplate both the National Do-Not-Call Registry and your company’s internal Do-Not-Call lists.
2. Make your TCPA policies and procedures easily accessible to employees
Organizations should clearly communicate compliance expectations to employees. It should not be difficult to locate important policies and related documents. Consider making policies available on your company intranet site. Or circulate hard copies as part of your company’s comprehensive policy handbook.
3. Implement TCPA Compliance Training
All customer-interacting employees should receive TCPA compliance training before they are allowed to work independently. Consider offering periodic refresher courses to ensure that employees are familiar with regulatory and internal requirements.
4. Keep your Do-Not-Call lists current
After completing the training, employees should be able to confidently and accurately explain your company’s policies regarding Do-Not-Call lists and TCPA restrictions related to cell phone numbers. Companies should develop automated processes to ensure that their Do-Not-Call list of names and phone numbers is accurate and up-to-date. This should include developing an automated process to identify cell phone numbers (commonly referred to as “scrubbing”) all outbound calls lists. Scrubbing can be conducted at the start of a call campaign, but that may not be the most efficient method. Many people port landline numbers to their cell phones, so bulk scrubbing may only ensure compliance for a few weeks. We recommend scrubbing only numbers that will be worked within a reasonable time frame (e.g., 10 days). In any event, each phone number should be verified right before it is called.
5. Error on the side of caution: If it’s a cell phone, dial the number manually!
The TCPA only applies to automated dialers and artificial-voice and prerecorded-voice messages. Nothing in the TCPA prevents companies from manually dialing. If you don’t know if your list contains cell phone numbers, but think it’s possible do not use dialing technology. In addition, do not leave prerecorded messages on a cell phone. No portion of a manually dialed call to a cell phone can contain an automated message without proper consent.
If you outsource certain functions to a third-party service provider, make sure you address assumption of risk in the vendor contract. Any legitimate service provider will understand the importance of complying with TCPA requirements and should be willing to commit to specific compliance measures in the vendor agreement. In addition, insist that the service provider commits to indemnifying your organization for any TCPA violations that they are responsible for while working on your behalf. Do not enter into a business relationship with any service provider who will not assume the risk for its own actions.
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