TCPA Compliance Checklist

The Telephone Consumer Protection Act (TCPA) was signed into law in 1991 to reduce the burden of automated telemarketing calls on consumers. By 2003, provisions prohibiting auto-dialed calls, prerecorded messages, unsolicited faxes, and text messages were added, strengthening the law to keep up with technological advancements that impacted consumer contact. New updates came in 2013, requiring express written consent for auto-dials and prerecorded calls to residential numbers and cell phone numbers, as well as for text messages.  

A rash of lawsuits followed as companies grappled with how to respond to the legislation and the various precedents set by judges in courts around the country. This TCPA compliance checklist serves as a convenient resource for corporations who risk running afoul of the requirements as well as their lawyers.  

Elements of Compliance 

First, we must consider the various marketing methods specifically addressed under the TCPA umbrella: 

  • Email: A consumer must have clearly consented to receiving marketing emails and must have a preexisting relationship with the company sending them. All emails must include a precise, easy opt-out method. The subject line must not be false or misleading, and advertisements must be identified as such. Recipients should know the identity of who is contacting them.
  • Text Messages:  Express written consent must be obtained from individuals prior to sending any SMS/text messages to them, with  the ability to opt-out required. Companies may only send texts between 8 a.m. and 9 p.m., and they are required to retain records of communications made through text messaging applications for future reference.
  • Faxing: Unsolicited faxes are prohibited without express  written consent. All fax advertisements must contain TCPA-prescribed opt-out language. These notices must be clear and conspicuous on page one of the fax advertisement, and provide a toll-free, 24/7-available mechanism to opt-out of the faxes.
  • Voicemail: A collector may convey the consumer or debtor’s name and a toll-free method that the consumer can use to reply to the collector. Third parties must provide meaningful disclosure of their identities and explain that they are attempting to collect a debt. The call must be delivered at a reasonable time of day.
  • Auto-dial: The courts are waiting for a clarification from the U.S. Supreme Court on what constitutes auto-dialing. What we do know is that rapidly dialing calls can be an easy way to rack up TCPA violations, particularly without obtaining prior consent or dialing restricted or reassigned numbers.
  • Direct Drop or Ringless (RVM) Voicemails: Direct drop cases have been allowed to proceed through the courts as TCPA violations. As with auto-dialing, mass batch ringless voicemail messages are a risky practice, which can lead to racking up multiple  penalties of up to $1,500 per call in violation of the statute.

TCPA Exceptions 

It’s also worth noting a few exceptions to the rule. The following contact does not fall under TCPA jurisdiction: 

  • Emergency calls 
  • Manually dialed calls 
  • Tax-exempt nonprofit generated calls  
  • Calls that are not commercial 
  • “Urgent calls” such as prescription notifications or appointment reminders 
  • Commercial calls that lack advertisements or telemarketing solicitations 

TCPA Compliance Checklist 

For quick reference, here is a streamlined TCPA Compliance Checklist:  

  1. Never call residences before 8 a.m. or after 9 p.m., according to local time.
  2. Do not call anyone on the state or federal National Do Not Call registries.
  3. Keep an internal Do Not Call list, specific to your business, and make sure your software is updated. 
  4. Always provide your name, the name of your company, and a contact phone number or address.
  5. Include easily accessible opt-out functions for all fax, text, and email correspondences.
  6. Thoroughly document and retain five years of consents should they become necessary to defend a TCPA lawsuit.
  7. Ensure that every phone number belongs to someone in your CRM software database.
  8. Track the amount of time between contacts with a particular consumer.
  9. If the call is for health reasons, adhere to federal privacy laws such as HIPAA.
  10. Routinely train employees on what constitutes unfair, deceptive, or abusive communications.
  11. Perform regular skip tracing to ensure your contact information is accurate.
  12. Disconnect a call if no one has picked up after 15 seconds or four rings.
  13. Aim for abandonment rates below 3% over a 30-day period with all calling campaigns.
  14. Keep a pulse on regulatory updates and TCPA court cases at least once a week.
  15. Use standardized processes to receive bankruptcy and active military duty updates.
  16. Review the practices of your third-party vendors to ensure they are compliant with the law.
  17. Do not participate in robocall campaigns unless you have obtained express prior consent from every phone number that will be robocalled.
  18. Be mindful of whether the message recipient will be charged for the messages.

Involved in a TCPA Settlement? Find Support With Heffler Claims Group. 

The team at Heffler Claims Group has extensive experience with TCPA class action settlement administration and related services. Our group of professionals uniquely understands your pain points from all angles — as certified public accountants, attorneys, special masters, IT professionals and programmers, data architects, and communications experts. For more than 50 years, we’ve led the industry with in-depth insights and compliance strategies. You can rely on Heffler to ensure a smooth and well-planned settlement administration while you focus on litigation.   

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