How TCPA Rule Changes Affect Consumers
If you grew up during the 1980s and 90s, you are probably quite aware of how epidemic telemarketing calls used to be. Back then, it wasn’t uncommon to get three to five calls inside of an hour — usually the hour you were trying to eat and watch television at the end of a long day.
The annoyance led to Congress passing the Telephone Consumer Protection Act (TCPA) in 1991. The law didn’t stamp out telemarketing altogether, but it did initiate a move toward greater responsibility requirements for advertisers and better protections for the consumer.
This week, a number of additional changes are coming down the pike, effective October 16, 2013. Here are the two that will most affect consumers:
New Rule No. 1: A consumer must provide prior express written consent before any unwanted autodial calls/“robocalls” can be placed.
Under the new rule, consent must be unambiguous. In other words, there cannot be any doubt of the source from which the consent originated, and one’s consent is not a condition of purchase. This also applies to text messages. There is only one exception to this rule: manually dialed calls that do not contain a pre-recorded message are exempt. Also, consumers should know that under the E-SIGN Act, electronic or digital forms of signature apply. That means consumers will have to think twice about providing their phone number and other information on web forms, and via email, text message, telephone key-press, or voice recording.
How This Protects the Consumer
The language of this new rule change means that any information used for marketing calls or messages must be provided by the consumer, not a piece of software. Many websites use software that auto-populates contact information based on previous data entered. This will not count as express written consent, and the burden of proof is entirely on the advertiser. Therefore, if the consumer sincerely doesn’t mind the marketing contact and wants to go through with submitting data to a company, it’s clearly their decision and not exploitable through a technology loophole. It can create a little more work on both parties, but it also ensures a more agreeable relationship, which can be beneficial to everyone.
Exceptions: According to the firm Klein Moynihan Turco, LLP, the only exceptions that exist include, “calls/texts from the consumer’s cellular carrier, debt collectors, schools, informational notices, and healthcare-related calls.”
New Rule No. 2: Established business relationships are not exempt from express written consent.
Having done business with a company in the past does not give that company carte blanche to send telemarketing calls and texts to a consumer’s cell phone or landline. New consent must be obtained per the requirements of New Rule No. 1.
How This Protects the Consumer
Consumers receive an opportunity to reevaluate their connections to businesses and ultimately determine whether they will welcome additional offers. If a consumer truly enjoys doing business with an entity, then it’s likely they will agree to the contact. If it’s a relationship they’d rather do without, or one that engages in frequent spam, then they can take a step back. Ultimately, the power of contact is in the consumer’s hands.
TCPA Ensures that Companies Play By the Rules
The TCPA has always been denied as a means of protecting consumers from unwanted, inescapable solicitation via phone services. These new rule changes offer additional protections to keep pace with advancements in technology. They also impose some stiff actual or statutory damages on companies that do not comply.
Depending on the level of violation — whether it was willful and knowing — fines can range from $500 to $1,500 per message. Considering that when autodialers are in use, they never target just one number, these fines can add up to one stiff penalty.
This protects the consumer by placing a burden of accountability on companies to complement the burden of proof.
If you’re a consumer tired of unwanted calls and text messages, then TCPA hears you, and help is on the way. New rule changes place the responsibility squarely on an advertiser’s shoulders. But remember, the information you provide to companies matters. Before making the decision of consent, ask about things like frequency of contact and opt-out procedures. Make sure you understand the relationship you’re getting in to, especially when personal information is involved.
Here is the full TCPA text with updates.