If you do outbound marketing via telecommunications, the Telephone Consumer Protection Act (TCPA) has probably been part of your business agenda – particularly in recent years, as stiffer interpretations of these consumer privacy laws have led to multi-million-dollar judgments against major corporations and others. So what lies ahead for businesses in the next 12 months in terms of TCPA?
The short answer is twofold: in an era of increasing consumer privacy, TCPA isn’t going away any time soon – but as efforts to ease its impact on businesses are making their way through the courts, there is hope for less risk and more leeway in meeting the requirements of TCPA. We will continue to monitor these developments closely, as a key provider of tools for TCPA compliance, but here is a summary of what we are seeing so far.
Three key issues: equipment, consent, and third parties
In a recent video interview with text messaging vendor Tatango, TCPA attorney Ernesto Mendieta highlighted three key issues that are currently the subject of court cases:
- the definition of automated telephone dialing systems (ATDS)
- revocation of consent
- the definition of co-parties.
The ATDS issue is particularly important for many businesses. TCPA prohibits unsolicited calls made via automated dialing equipment; however, a much broader definition of ATDS introduced in 2015 included equipment that could store and dial numbers without human intervention, even if these capabilities were not used. This expanded definition was struck down by an appeals court in 2018, with new FCC guidelines expected in 2019. According to law firm Eversheds Sutherland LLP, businesses are hopeful that these new guidelines will provide a much clearer standard for these devices.
Another key issue for TCPA litigation revolved around whether consumers can revoke consent for contact via ATDS if they have previously agreed to such contact under the terms of a contract. Recent legal cases have tended to rule in favor of businesses, deciding that such contracts override a consumer’s right to revoke this permission, however, case law is not unanimous and further cases are expected to shed more light on this issue in 2019.
Finally, recent court decisions such as this one involving Taco Bell point to more clear boundaries about whether businesses are liable for TCPA violations on the part of third parties promoting their products or services. Here as well, case law is expected to evolve further in 2019.
In general, many of these legal efforts spring from a backlash from businesses affected by recent stiffer interpretations of TCPA, and its fallout in terms of penalties. For example, the National Association of Federally Insured Credit Unions (NAFCU) is publicly urging the FCC to reform TCPA to “separate bad actors who are harassing consumers with unwanted and potentially harmful robocalls from good actors like credit unions contacting their members with valuable information on their existing accounts.”
A new safe harbor for changed numbers
One other major change on tap for 2019 is a new way that businesses can protect themselves against inadvertent marketing calls or texts to numbers that have changed hands. In December 2018 the FCC issued an order calling for the creation of a national database of reassigned phone numbers, for the purpose of reducing unwanted contacts to consumers with these numbers. To encourage its use by businesses, this ruling also includes a TCPA safe-harbor provision for calls to reassigned numbers when the most recent version of this database is checked first.
It is important to note that this new database will not remove the need for good contact data hygiene, particularly the verification of contact phone numbers. Contacting a bad or mistyped number can still open businesses to liability. Given the high percentage of numbers that do change each year, it is still important for the sake of data integrity to verify contact numbers both at intake and before a campaign, using tools such as Service Objects’ DOTS GeoPhone Plus 2 service. However, this new database can help mitigate what has often been a common source of liability.
Summing it all up
The essential purpose of TCPA remains unchanged: businesses still can’t spam consumers via automated telecommunications, particularly wireless devices, without their explicit permission. But there is hope for well-intentioned businesses in 2019, with prospects ranging from clearer legal requirements to better tools and safe harbor provisions for inadvertent marketing contact.
Here at Service Objects, we will continue to keep abreast of how TCPA and its enforcement continues to evolve in 2019. In the meantime, we are always happy to consult with your business to help you find cost-effective solutions for TCPA compliance – contact us anytime.
