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10 Best Practices to Avoid a TCPA Lawsuit

Avoiding a TCPA Lawsuit

While the regulatory and legal sands of the Telephone Consumer Protection Act (TCPA) are constantly shifting, one constant remains: the statutory penalties and class-nature of TCPA claims means that there will be a constant flow of class counsel and individual demandants scouring your calling practices in hopes of finding a lucrative claim. Against this landscape, it is not enough to simply ensure that your business is compliant with the TCPA and applicable state laws. These 10 cautions, best practices, and practical tips can further reduce the risk that a TCPA lawsuit or unwanted demand shows up at your doorstep.

As you read through these and incorporate them into your own calling practices, it’s important to remember that texts are largely considered the same as calls under the TCPA, and therefore fall under the same rules and restrictions.

1. The Facebook Decision Did Not Eliminate TCPA Complaint Issues

In the wake of the U.S. Supreme Court’s 2021 decision in Facebook v. Duguid, many businesses incorrectly believe that TCPA concerns are in the rearview mirror. However, while the decision limits the autodialer restrictions largely to instances where marketers are dialing numbers that are randomly or sequentially generated as opposed to conducting a targeted marketing campaign directed to a lead list, additional TCPA restrictions still apply. The Plaintiffs’ bar has adapted accordingly, bringing TCPA claims under several alternative bases.

These include:

  • Calling numbers on the national do-not-call registry without a valid exemption
  • Pre-recorded voice campaigns (including voicemail drops and soundboard technologies)
  • Failing to comply with TCPA disclosure and calling time restrictions

For a detailed discussion of the TCPA’s compliance requirements, see our TCPA Requirements FAQ.

2. Lead Quality Matters

While generating your own leads is the safest approach, many businesses rely on third party publishers and lead generators to deliver leads. However, not all leads are created equal, and leads sourced outside of your business bring additional risk. The highest quality lead is a single-seller lead, where the inquiry is branded with your business and requests that the consumer submit consent for your specific business to contact them. Pending regulatory changes from the FCC have called into question whether multi-seller lead forms will remain a viable option.

Lead forms that attempt to hide that the consumer is requesting a call may increase conversion rates (for example, by implying that the consumer will receive quotes online by submitting the form), but also increase the risk that the consumer will view any subsequent calls as unwanted.

3. Ensure Lead Attributes Match Your Calling Practices

A common misnomer in the telemarketing and lead generation world is that a lead can be “TCPA compliant.” However, the reality is that determining whether dialing any given lead will comply with the TCPA requires an individualized inquiry that compares the source of the lead with the subsequent calling campaign. For instance, a consumer may submit a lead requesting a quote for auto insurance that could permit an insurer to call them, but not a mortgage lender.  The FCC is further pressing this requirement by stating that the call must be logically and topically related to the interaction that prompted the consent.

If you are using lead generators or other third parties to provide lead data, ensure that your written agreements contain well-defined lead attribute standards that require, for example, that your business be identified by name on the lead form, consent is being recorded and maintained, and the consent page is tied to your vertical (i.e., health insurance, solar solutions, mass tort, and so on).

4. Don’t Assume Warm Lead Transfers are Risk-Free

Sellers often mistakenly believe that accepting warm lead transfers is a low-risk approach to telemarketing because the seller itself is not engaged in outbound dialing. However, a seller may be held vicariously liable for the initial outbound call. It may not be enough for the call transfer provider to obtain consent on the call for a subsequent transfer of the call.

Indeed, many sellers are surprised when they receive a TCPA demand or complaint alleging numerous calls when they received only one call transfer – attributing every call from the transferer to the seller. It is just as important to ensure that your transfer partners have obtained compliant consent prior to initiating any outbound call that may be transferred to you and that their calling practices are likewise compliant (for example, the calling time and disclosure requirements set forth below).

5. Beware of Aged Leads/Relationships

Many businesses rely on having a pre-existing relationship or receiving an inquiry from a consumer as a do-not-call registry exemption to run campaigns that do not scrub against the national do-not-call registry. However, these exemptions expire over time. For an inquiry (submitted to the business or obtained through a publisher), the exemption will expire three months after the inquiry. For a transaction establishing a relationship (e.g., a purchase by the consumer), the exemption will expire after eighteen months. Also note that state laws may provide differing expiration to DNC exemptions. These concerns come to the forefront when calling on aged leads, conducting win back campaigns, or in industries where there may be a delay in purchase (for example, a car dealer contacting a customer at the expiration of a multi-year lease).

6. Use a Litigator Scrub

A large proportion of TCPA demands and lawsuits come from a limited pool of individuals who have turned TCPA litigation into a cottage industry. Vexatious litigator scrubs, offered by numerous vendors, contain a constantly updated database of numbers tied to these repeat complainants and can be integrated into your dialing software to reduce the risk that you fall into a trap by one of these professional litigants. If you are buying leads or transfers, requiring your publishers or vendors to use a litigator scrub prior to delivering leads or calls is another effective means to reduce risk.

7. Pay Attention to Disclosure Requirements / Calling Time Restrictions

An increasing number of TCPA class action suits allege that a business placed a telephone call outside of the hours permitted by the TCPA (8AM – 9PM at the called party’s location) and/or failed to include disclosures containing the name of the individual making the call, the business on whose behalf the call is made, and the phone number or address of the business. In addition, state laws may impose call frequency caps, differing calling day/time limits, and disclosure requirements. Be sure your calling campaigns take into account time restrictions (keeping in mind the impact of time zone differences and that rules vary by state), and make sure that all required information is disclosed at the appropriate time during the call.

8. Establish Do-Not-Call Policies and Procedures

In outbound dialing, mistakes do happen. A business may fail to properly disposition a do-not-call request submitted by a consumer, either by agent mistake or perhaps because the DNC request arrived through an unexpected channel. In defending against these claims, a business may be able to rely on a bona fide error safe harbor exception to the TCPA’s otherwise imposition of strict liability. To rely on this safe harbor, however, a business needs to have compliant practices, written policies, training, and other procedures already in place when the subject call occurs.

9. Comply with State Laws Too

In addition to the TCPA, various states have implemented TCPA-like laws that contain varying do-not-call restrictions (including states that extend do-not-call registry to business telephone numbers), restrictions on text messages, calls to cellular phones, and the use of autodialers. Several states have also enacted telemarketing sales solicitation acts that impose restrictions on sales completed or initiated over the telephone, including disclosure requirements, requirements for a written contract, and rescission rights.

10. Keep State Telemarketer Registrations Current

Many states – about three dozen of them – require businesses to register as a telemarketer unless an exemption applies. While the exemptions vary, they could include having a prior business relationship, consent to call, or a physical retail location in the state. Conducting telemarketing into a state with a lapsed or nonexistent registration could result in a business being subject to criminal, regulatory, or civil penalties.

Note: This article is intended to provide a general overview of a topic area and is not legal advice. Still have questions about the TCPA or other telemarketing laws? We can help! Email us or call 614.939.9955.



** This article was updated January 30, 2024

Chris Wager headshot

A Partner at M&S, Chris advises clients on telemarketing and privacy matters, helping them develop proactive compliance programs and successfully defending them in government enforcement actions, litigation, and class action lawsuits.

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