In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) in response to the proliferation of telemarketing campaigns. Although it does address the many tools companies use to reach consumers over the telephone – such as “robocalls” and autodialers, as well as requirements for the Do Not Call List – the TCPA is not limited to telephone communication. The Act also controls the use of any form of contact, including fax machines, email, and SMS text messages, that is used for the purposes of advertising.
First and foremost, compliance with the TCPA requires businesses to obtain consent from an entity before sending unsolicited communications for the purposes of advertising. If the business does not obtain that consent, either via express consent from the entity or implied consent from a business relationship with the entity, heavy restrictions apply to the communication between the business and that entity if the business seeks to advertise their products through that communication.
For businesses using telephone calls to market their products, it is unlawful to contact numbers listed on the National Do Not Call Registry (or List). Individuals can register their number for free on this list. It then becomes unlawful for companies to make unsolicited sales calls to that number. Companies may still be able to call if they conducted recent business with the individual due to implied consent, but once the individual asks the company to no longer call the number, the company must stop or risk facing penalties under the TCPA. Additionally, the TCPA limits the use of autodialing machines, which can make calls without the need for a person to manually enter in a phone number, and methods of blocking caller ID on the receiving end of calls. Individuals who wish to report unwanted calls from a company can contact the FTC to enforce the Act.
Plaintiffs can collect large amounts of money in damages from businesses that do not follow the TCPA’s rules when it comes to phone calls. Some examples include the lawsuits below:
For businesses using other forms of communication – in particular, SMS text messaging – the TCPA requires that the advertisement include a required list of notices. First, there must be a clear and conspicuous notice that the advertisement is, in fact, an advertisement. This means that at the top of the message, or on the first page of the fax, there must be a clear indication that the communication is for advertising purposes. Next, the message must include a mechanism that the consumer can use to opt-out of future advertising messages from the company. This may be an automated process that the consumer can use to cancel future messages, or a point of contact, such as a phone number, that the consumer can use to request to opt-out. The process must be clear, easy, and free of charge in order for the message to be in compliance. The communication must state that opting-out is an option, and guide the consumer to that mechanism.
It can be easy for a business to accidentally cause a massive number of violations under this portion of the TCPA. In 2018, the CEO of an Illinois medical supply company faced $7.8 million in violations due to 15,666 faxes that he believed he had sent with the consent of the recipients. The class of people affected by these messages were able to prove to the court that these were unsolicited advertisements without notice that they had not consented to, and the Court held against the CEO. This kind of campaign can involve large numbers of messages, each with their own attached fine, that, while concerning alone, can become devastating when they add up.
These notice requirements may be tricky to navigate if you are unfamiliar with what the TCPA asks of businesses, and if you are considering using fax, email, or text messaging as part of an advertising campaign, you should consult with the attorneys at Traverse Legal PLC, who familiar with the TCPA, when writing the text of your advertising message.
This blog post contributed, in part, by Traverse Legal Virtual Law Clerk Scott Pehoushek.