Understanding TCPA Compliance for Outbound Calls and Texts

Facing potential fines of $500 to $1500 per violation, it’s crucial for organizations using outbound communication methods to fully understand and adhere to the Telephone Consumer Protection Act (TCPA). 

Considering all the outbound calls an organization can make in a day, that fine can be well into the millions if an organization is not safeguarded against federal and state regulations. 

This guide delves deep into the intricacies of TCPA compliance, particularly in the context of dialers, helping your organization navigate and adhere to these critical federal and state regulations.

What is TCPA Compliance?

Simply put, TCPA compliance means conforming to the rules set by the TCPA, a pivotal federal law in the U.S. aimed at protecting consumers from unsolicited telemarketing calls, faxes, and automated text messages. Understanding what TCPA compliance entails is the first step in ensuring your organization’s communications are lawful and respectful of consumer preferences.

Understanding TCPA Compliance 

To remain 100% compliant, you must understand compliance and all its nuances. There are many rules and regulations an organization must follow to remain compliant. We outline a few of those rules and regulations below.

The Critical Role of TCPA Compliance

Adhering to TCPA compliance is more than a legal necessity; it’s vital for maintaining a positive brand image and fostering strong customer relationships. TCPA safeguards consumers by regulating the timing and frequency of contact by organizations, and mandates the obtaining of consent in certain scenarios. The TCPA also imposes rules on the use of automatic telephone dialing systems (ATDS) and maintaining Do Not Call (DNC) lists at the federal and state level. 

Consequences of Non-Compliance 

Ignoring TCPA Compliance can lead to substantial fines and damage your organization’s reputation, potentially eroding customer trust and loyalty. It’s imperative to recognize the high stakes involved and take proactive steps to ensure compliance.

Staying Informed: The Key to TCPA Compliance 

Achieving and maintaining TCPA compliance requires staying abreast of the ever-changing regulations. This includes understanding both federal guidelines and the various state-specific “mini TCPAs” with their unique rules and requirements. These “mini TCPAs” can include state-specific frequency thresholds, reduced calling hours, updates to what constitutes an ATDS and/or consent, and new agent disclosure requirements, among other requirements.

TCPA Compliance Requirements Unveiled  

Key Consent Requirements Under TCPA 

One of the core aspects of TCPA compliance involves understanding and managing consent for communications, especially when using an ATDS. This includes recognizing the nuances of consent for both voice calls and text messaging.

Phone Call Compliance

Under the TCPA, an organization does not need prior consent to contact someone using the telephone unless their number is restricted for some reason. The way a user revokes consent for being called by telemarketers is to register their phone number on the Federal and/or State DNC database (if they live in a state that has its own DNC registry).  

Specific Terms for SMS (Text Message) Compliance

However, there are more ways to connect with consumers than just by calling them. Under the TCPA, both marketing calls and text messages are subject to government regulation. This includes legally text messaging wireless phone numbers from an automated telephone dialing system. Unlike the DNC, consumers do not have to opt-out or be on a Do Not Call list to avoid being contacted by text message. Unless a consumer provides express written consent to being contacted via text message, a business is not permitted to text them. This carveout is specific to each organization and must be maintained to provide proof of consumer consent.  The ways to get consent in “writing” in today’s digital age include website forms, text messages, telephone key presses, and voice recordings. 

Opt-Outs

A big part of obtaining consent is also managing opt-outs. Once an opt-out request is captured it must be disseminated across the entirety of both internal and external calling operations. Under the current law, organizations have 30 days to honor opt-outs unless with technology it can be observed faster. However, the FCC has proposed a change to the current law that would require companies to honor consumer requests to be removed from calling or texting lists within 24 hours. 

Robocalls and the Role of ATDS in TCPA Compliance

Understanding the definition and implications of robocalls and ATDS usage is essential for staying compliant. This section clarifies their roles and the importance of obtaining prior express written consent for contacting consumers using these technologies.

What is a robocall? 

A robocall is a colloquial term used to describe an automated telephone call which delivers a recorded message. Robocalls use an ATDS, often referred to as an autodialer. A robocall is not defined under the TCPA but robocalls are closely associated with using an ATDS, so they are something organizations should be aware of. Robocalls are often closely associated with individuals or companies looking to take advantage of susceptible and unexpecting segments of society for financial and other gain. 

Understanding ATDS 

If your organization is making outbound calls using an ATDS or a system with the capacity to be an ATDS (even if you’re not utilizing automated calling capabilities) without protections in place you are at high risk of violating TCPA guidelines. 

The TCPA requires that organizations using an ATDS or who leave pre recorded messages when contacting consumer mobile numbers must obtain prior express written consent from consumers to legally contact them. If a wireless number is being used for business purposes, you must obtain prior consent to contact the number if utilizing an ATDS.   

It is important to note that the TCPA’s definition of ATDS has changed over time and can also vary by state. The law currently defines an ATDS 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.” Your own legal counsel should be involved in defining your own internal telemarketing practices and how an ATDS is defined within your organization. 

If this sounds difficult to manage it’s because it is. Using an automated-call blocker is the only way to ensure TCPA compliance for every dial. 

Navigating Call Time Restrictions 

Under the TCPA, businesses are prohibited from calling consumers before 8 am or after 9 pm. Not only are call curfews outlined in the TCPA, but there are other state specific call time restrictions such as legal calling hours (20+ states have hours that are more restrictive than the federal standard), state holidays, and state of emergencies that vary widely. Calls to phone numbers in certain states could result in violations of that specific state’s holiday calling prohibitions. Multiple states have restrictions on various holidays each month, so it is critical that your organization stays in-the-know with these monthly changes.  

Additionally, some states have restrictions in place for contacting consumers during state of emergencies. In New York state, for instance, the New York Disaster Emergency Restrictions under the Nuisance Call Act mandate that it is unlawful for telemarketers doing business in the state to knowingly place an unsolicited telemarketing call to any person during a declared state of emergency. 

TCPA Wireless Restrictions 

As more people are choosing remote or hybrid work and using their personal wireless numbers to conduct business, organizations must be more cognizant than ever of wireless restrictions. The TCPA prohibits telemarketers from calling and texting wireless phone numbers using an ATDS unless the caller has obtained prior express consent, or if the call is being placed for emergency purposes. 

Seems straight forward enough, right? Not so much. TCPA wireless restrictions apply to all wireless numbers whether residential, business, or hybrid use. This means that even if a number is being used for business purposes and is provided to you as such, you are at risk of a violation. 

How these requirements apply to dialer use 

All the above rules and regulations have a common factor: they all have to do with using an automatic dialer. While an ATDS makes it easier to prioritize and manage outreach, it’s important to be aware of all the regulations that come with using an ATDS. 

Essential Guidelines for TCPA Compliance 

Today’s businesses face an uphill battle when it comes to maintaining compliance. With the ever-changing regulatory landscape, and the many challenges that brings, it is getting harder and harder to keep up (and comply) with telemarketing rules and regulations. Here are a few guidelines companies can implement to help remain compliant

1. Obtain Proper Consent Records 

When managing consent to contact consumers, it’s important to keep records of that consent in case they are needed during an audit or investigation. When it comes to managing outreach, always keep a detailed audit trail. If your organization calls a number on the Do Not Call List and does not have a visible audit trail of every call made and each time the data was scrubbed against the DNC, you can be subject to serious compliance violations and penalties.  

If your organization is communicating with consumers via text message, it’s important that organizations always do the following when obtaining consent: 

  • Provide accurate information about the nature and content of text messaging when requesting permission 
  • Keep a record of all “written consent” received regardless of format 
  • Always provide an easy way to opt out of future communications and observe those opt
    outs in a timely manner

Without a proper audit trail, it becomes difficult to demonstrate that your organization took the proper steps to remove a phone number from your database correctly, leaving the organization vulnerable to compliance violations and potential legal actions. The proper consent records help your organization stay protected if you are suspected of violating the TCPA.  

2. Maintain and Update DNC Lists 

DNC lists are constantly being updated. With federal, state, and internal DNC lists available for consumers, each updating on its own cycle with varying list effective dates, it can be difficult to manage what numbers are on a DNC list and what numbers are OK to contact.  

Wireless numbers are especially tricky to manage. With wireless number blocks assigned by mobile carriers to their customers and ported wireless numbers changing from landline to wireless (and vice versa), DNC lists must be updated incrementally and disseminated out to all internal and third-party calling operations in a timely manner. 

While many companies rely on a DNC scrubber, the only way to completely avoid calling a number on a DNC list is by using an automated compliance solution and a platform approach across all internal and third-party systems that blocks restricted numbers in real-time, eliminating the risk of accidentally dialing a restricted number.  

3. Train Agents to Ensure TCPA Compliance 

Another way to remain compliant is to ensure that the agents who are performing outbound calls are aware of and understand TCPA compliance. An easy way to accomplish this is by using a conversation intelligence tool. Conversation intelligence (CI) can help agents remain compliant through script adherence, recording and transcription, real-time coaching and more. Script adherence ensures that agents are sticking to certain scripts, making the necessary disclosures as legally required, and complying with regulatory items. Because CI records and transcribes every conversation, it has the ability to record when consumers give consent to be contacted.   

Real-time coaching is also helpful for agents to help them remain compliant. Real-time coaching provides support to agents during the call in the moment to ensure every conversation is accurate, efficient and empathetic. With CI’s real-time coaching capabilities, agents can also ensure script adherence and proper disclosures in real-time to ensure accurate information is delivered, protecting your organization from legal liability. CI can also ensure there is no sales language utilized for servicing calls, as well as agent adherence to a consumer’s opt-out requests. 

Check out this case study to see how Wyndham Destinations used Gryphon’s do not call compliance technology to avoid hefty fines. 

Interested in learning more about DNC and TCPA compliance? Check out our comprehensive marketing compliance checklist.

Adapting to Changing Regulations and Ensuring Continuous Compliance

TCPA regulations are dynamic, necessitating continuous monitoring and adaptation. We provide insights into effectively navigating the evolving regulatory landscape, highlighting the importance of tools and systems that aid in maintaining compliance

Evolving Nature of TCPA Regulations 

One of the challenges businesses face when it comes to TCPA compliance is the ever-changing regulatory landscape. For example, the definition of an ATDS has changed over time and has been the subject of many debates and legal disputes on both a federal and state level. Courts and regulatory agencies have issued differing interpretations that vary widely across jurisdiction, making it challenging for businesses to determine whether their dialing systems fall under TCPA regulations.  

The Importance of Continuous Monitoring 

Staying updated on these requirements is crucial to avoid compliance pitfalls. Many TCPA regulations require constant monitoring. For example, reassigned phone numbers. TCPA regulations now require businesses to check a database of reassigned phone numbers to ensure they are not calling or texting individuals who have switched numbers. Under the TCPA, consent is associated to the consumer being called, not the phone number associated with consent. Therefore, callers will be held liable for soliciting phone numbers for which they previously obtained consent to contact if the number has since been reassigned. It is crucial to constantly monitor the reassigned number database to ensure you are not calling a reassigned number who does not want to be contacted.  Without continuous monitoring, your organization can fall victim to hefty fines. 

Resources for Navigating Regulatory Changes 

To help navigate the complex regulatory landscape, consider using an automatic compliance solution. Gryph for Compliance evaluates every call and text message against continuously evolving state and federal regulations and automatically blocks non-compliant interactions right from the dialer. Our solution drills down even further to cover call curfew prohibitions, frequency of outreach, and other preference or industry standard your organization designates.

Start Your Journey Towards Comprehensive DNC and TCPA Compliance Today

By now you’ve learned the significance of TCPA compliance for businesses using dialers to help their outbound efforts. Not only does remaining TCPA compliance help your organization avoid fines and lawsuits, but it also protects your brand reputation in an age where consumer trust and loyalty are valued highly. Every organization must remain vigilant and commit to prioritizing TCPA compliance and staying informed about regulatory updates

Take the guesswork and heavy lifting out of TCPA compliance and learn more about Gryphon’s automated compliance solution today

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