TCPAWe’re all about helping businesses do better marketing, so when we get wind of a change that will affect the way you do business, we like to share it as soon as possible. In this case, the change is upon us. Beginning tomorrow, October 16th, two new rule changes under the Telephone Consumer Protection Act (TCPA) are going into effect for telemarketers, and while it may only affect a handful of our own customers, we thought we’d break down all the details here.

Prior to October 16th, having an “established business relationship” with a customer was enough for a company to send customer marketing communications using an autodialer and/or pre-recorded or artificial voice phone call to a residential landline without prior consent, but as of tomorrow, that’s changing. Additionally, prior to October 16th, a company could send marketing communications to mobile phones using an autodialer, SMS, and/or pre-recorded or artificial voice phone call as long as it had prior express consent, which could provided in many different formats, but that is also changing.

As of October 16th 2013, companies will need unambiguous prior written consent from customers/consumers to market to them this way on mobile phones as well as landlines, even if they had an established business relationship.

The TCPA is able to fine violators between $500-$1500 for each unsolicited call or message – the range is determined by a court evaluating if the sender knowingly violated the law, so violations have strict penalties.

It sounds scary, but before you panic, read on. For many marketers, especially those that are already complying with the Telemarketing Sales Rule, this isn’t that big of a deal.

How will this affect me?

First, if you’ve already been getting written consent to market to your customers, this won’t affect you at all. Also, if you are just sending out informational broadcasts, then these changes won’t affect you either—they are only aimed at marketing efforts.

If you are sending out marketing messages, however, you will need to have and retain express written consent from your potential customers, whether you have acquired the number on your own or through a third party, if you want to send them outbound SMS messages or voice broadcasts. Note that just being provided the phone number is no longer considered written consent—the consent must be expressly provided if you want to avoid fines.

The written agreement for consent should include a clear and conspicuous disclosure informing the person signing that: (a) By signing the agreement, the person authorizes the business to send text messages to their mobile phone; and (b) The person is not required to sign the agreement (directly or indirectly), or agree to enter into the agreement as a condition of purchasing any property, goods, or services.

As for getting a “signature,” this can include an electronic or digital form of signature, to the extent that it’s valid under applicable federal law or state contract law. This would include a mobile opt-in, in the case of SMS marketing. The user would need to designate a phone number at which to be reached (which should not be pre-populated by the advertiser in an online form).

Limited exceptions apply to the written consent requirement for mobile phones, such as calls/texts from the customer’s cellular carrier, debt collectors, schools, informational notices and healthcare-related and political calls, in which case express consent is still the standard.

What’s the deal with TCPA?

The TCPA was created to protect consumers from aggressive marketing techniques such as robocalling and unsolicited telemarketing. While Ifbyphone does not use robocalling in its business practices or consider our services to be a traditional autodialer*, the provisions of the law still apply to our customers’ practices while using the Ifbyphone services.

How is the TCPA different from the Telemarketing Sales Rule (TSR)?

The October 16th changes, combined with the prior automated opt-out and call abandonment requirements effective January 14, 2013, closely align the TCPA with the TSR, with a few distinctions (this list is not comprehensive):

1. Type of Calls: The TSR applies to telemarketing calls only, while the TCPA applies to all autodialed calls and SMS messages.

2. Jurisdiction: The TSR applies to interstate commerce, and is governed by the FTC, which does not have jurisdiction over common carriers, banks/financial institutions, insurance providers, or airlines. The TCPA is administered by the FCC, which has jurisdiction over all calls, regardless of industry.

3. Penalties: Individuals do not have a private right of action under the TSR unless damages exceed $50,000, and there are no statutory damages.

Individuals have a private right of action with no threshold under the TCPA ($500 per violation), with a potential for treble damages.

Please note that Ifbyphone cannot act as an attorney for our clients; the information provided above is not complete or exhaustive and does not constitute legal or other professional advice. We just know this is important stuff and that anyone who is doing any marketing—not just our own customers—should be aware of it as they go about building their business. Good luck out there! Feel free to ask any questions in the comment section below and we’ll do our best to answer them.

*The TCPA defines an “automatic telephone dialing system” or “autodialer” as equipment which has the capacity (a) to store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers. The FCC has emphasized that this covers any equipment, hardware, software or combination that has the capacity to generate number and dial them without human intervention, regardless of whether the numbers actually dialed were from the random generator, or a separate call list. Our best practices are to apply the broadest definition of an autodialer and comply with these changes.