While the TCPA may seem intimidating, compliance is manageable with the right knowledge and procedures in place. In this blog, we’ll discuss essential TCPA compliance issues, recent changes, and the impact on dealerships.
Understanding TCPA and ATDS
The TCPA primarily regulates how businesses make marketing calls or send texts to consumers. One key aspect is the use of an Automatic Telephone Dialing System (ATDS), defined as any system that uses a random or sequential number generator to store or produce phone numbers for dialing.
In a significant 2021 decision, the Supreme Court clarified that a system must use a random or sequential number generator to qualify as an ATDS under the TCPA. This has generally simplified compliance for businesses using preloaded contact lists. However, it’s important to note that state laws may have different definitions and requirements.
State Laws and Do Not Call Regulations
Beyond federal regulations, businesses must also be aware of state-specific rules governing the use of auto-dialers. Regardless of the technology used, businesses must ensure they do not contact individuals on the Federal Do Not Call Registry unless they have prior express written consent or an established business relationship (EBR).
There are two types of EBRs:
- Inquiry EBR: Lasts 90 days from when a consumer inquires about goods or services.
- Transactional EBR: Lasts 18 months from the consumer’s last purchase or payment.
Many dealerships fail to track the expiration of these EBRs, leading to potential violations when contacting consumers beyond these periods.
Pre-Recorded Messages, AI, and Ringless Voicemails
The use of pre-recorded messages and AI in outbound calls also requires prior express written consent under TCPA regulations. Recent FCC decisions have reinforced that ringless voicemail constitutes a pre-recorded voice message, which also requires written consent.
Similarly, the recent “Bradley vs. DentalPlans” ruling highlights that collecting consent via a recorded phone call does not satisfy TCPA requirements for written consent. This decision may trigger more lawsuits challenging businesses that use phone recordings as evidence of consent.
Scrubbing Against the Do Not Call List
Dealers must ensure that every marketing call or text is scrubbed against the Federal Do Not Call Registry unless one of the above EBR exceptions applies. Even calls made with basic technologies, such as desk phones or mobile phones, can result in TCPA violations if this step is overlooked.
SMS and Texting Compliance
Text messages are treated the same as phone calls under the TCPA, with similar consent and scrubbing requirements. Many automated text platforms could potentially violate these regulations if they do not comply with the federal or state rules for consent and do not call lists.
New Guidelines on Consent
There have been recent changes to the FCC’s definition of “prior express written consent.” Now, consent must be collected on a one-to-one basis, logically and topically related to the specific product or service being marketed. Broad consents, such as those obtained through unrelated websites or apps, are no longer valid.
Staying Compliant and Informed
The TCPA landscape is constantly evolving, and staying compliant requires regular updates to your practices and close monitoring of changes. Make sure you:
- Review your call and text practices regularly.
- Ensure your consent methods are compliant with the latest rules.
- Maintain your own internal do-not-call list and respect customer opt-outs.
Get Expert Guidance
This blog provides general information about telemarketing laws and regulations. It is not legal advice and does not capture all possible telemarketing laws and regulations or evaluate the application of laws and regulations to any specific use case. You must not rely on this blog as legal advice and you should consult your own attorney about how the telemarketing laws apply to your specific circumstances.***
Conclusion
Navigating TCPA compliance may seem complex, but by staying informed and vigilant, you can avoid costly mistakes. At Volie, we’re committed to keeping you updated on these important topics, and helping you navigate the regulatory landscape confidently.
Do you have any questions or need further assistance? Reach out to us at Volie—we’re here to help you make the most out of your BDC operations while staying compliant!
