The New Telephone Consumer Protection Act (TCPA)


As technology innovations for your telephone and website continue to emerge,  these new technologies such as “click to call”  are enabling business owners to quickly implement these tools around the globe. While the race is on to secure this competitive advantage, a small handful of companies have been taking advantage of their improved databases of potential customer contact information. This situation has led to updates being implemented in the Telephone Consumer Protection Act of 1991 (TCPA). Understanding how TCPA affects your business is mission-critical.

In this special report, we’ll explain the key highlights of the legislation changes and what they mean for your business. Let’s start by quickly understanding what the TCPA is.

Understanding the TCPA and Why You Should Take it Seriously

The TCPA was originally passed as an amendment to the Communications Act of 1934. In principle, it’s designed to restrict telemarketing companies contacting people without permission. If you slipped up and found yourself the subject of a legal case, a lawyer could press statutory damages of up to $1,500 against your company if it was proved there was any willful or knowing violations. The problem is, modern telecom systems can be incredibly complex and, mixed in with a potential lack of vigilance from staff or possibly some over-enthusiasm from a salesperson, it’s all too easy to find yourself backed into a legal corner.

Businesses Confused with the New TCPA Regulations

Many small to medium businesses whose marketing efforts rely on outbound calls have been struggling to understand exactly what the new legislation means. While marketing campaigns launched on the basis of either politics or fundraising are exempt from the changes, all other verticals need to have a clear grasp. Some companies have even resorted to hiring legal professionals to interpret the documentation so as to avoid slip ups.

As of October 16, 2013, businesses using the below telephone marketing strategies will need to be diligent to insure they are getting express prior written consent to contact consumer among other things.

The Crux of the Matter: Express Prior Written Consent

This will apply to you if you’re using:

  • Automatic outbound dialers to contact cellphones and other wireless phone numbers
  • Delivery systems of pre-recorded messages to landlines or cellphones
  • Outbound text message (SMS) marketing campaigns

While the TCPA has seen a number of revisions over the years, this pending update is arguably the most significant. There’s some speculation that it’s an attempt by the Federal Communications Commission (FCC) to bring the TCPA up-to-date and in-line with the Federal Trade Commission’s  (FTC) telemarketing sales regulations.

In the past, there was a legal exemption applied for making calls to wireless phone numbers on the grounds there was an Established Business Relationship (EBR) in place. Unfortunately, the legislation means this is no longer valid and now, prior express permission will be needed. The same rules apply to any informational, marketing or promotional pre-recorded message sent to any phone number.

What Defines Prior Express Written Consent?

The way the FCC defines the idea of this written consent is pretty unambiguous, so it’s unlikely to be worked around. A company must be in possession of the signed written agreement that conspicuously and clearly provides permission or authorization for that company to engage in the above telemarketing activities to a specified phone number.

On the plus side, electronically signed documents can be used provided they adhere to the Federal E-SIGN Act. It should also be said that the definitions will vary from state to state so it’s important check up those that are relevant to your business.  There are companies like that can provide you with auditing technology to also insure you have a nice backup showing you did not pre-fill your forms or checkboxes and had the correct disclaimers on your site at the time of the inquiry.

How This Affects the Bigger Picture & Your Marketing Campaigns

Increasingly over the past few years, marketing campaigns that had a lead in with some sort of high value item or incentive have been the most successful. Businesses are offering more free trials, free demos, free educational courses and other content marketing strategies helping to build a relationship with a potential customer base.

The new TCPA regulations play very much into this continuing trend. It’s certainly not convenient to need written permission to engage in telemarketing efforts, but it may just provide an opportunity. While some of your competition might feel stumped by the new regulations, it’s gives you the opportunity to innovate and go the extra mile to grab people’s attention.

On the face of things, it may seem dire, and some might argue the new rules don’t make a lot of sense for online commerce.  Either way, it will help people pay attention to compliance and update their websites and marketing plans.  Finally, there are also third part databases that will allow you to determine if a phone number is a mobile phone or even ported over to a mobile phone so you can clean out your lists if you wish.  More to come on this in the future…

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