Consent Language—It Is Easy, But It Needs To Be Perfect

Plaintiffs’ attorneys often argue in Telephone Consumer Protection Act (“TCPA”) cases that the statute is “strict liability”, i.e. if you violate the law, you are subject to damages of $500 to $1,500 per call or text and it doesn’t matter if the violation was a mistake, intentional, or unknowing.  Many of these same plaintiffs’ attorneys argue that the TCPA almost automatically results in class actions, so any size calling campaign would subject the caller to damages in the amount of thousands or millions of dollars, even if the violations were mistakes.

For this reason, it is extremely important that you pay careful attention to each of the compliance requirements in the law.  A single missing word in a fax disclosure or an online inquiry form could result in a “violation”, used by hundreds or more people to create thousands or more outbound communications.

In the case of online consent language, if you intend to contact consumers who make these inquiries for telemarketing or advertising purposes with an automatic telephone dialing system (“ATDS”) or a prerecorded voice, your form should obtain “prior express written signed consent”.

That term describes several specific elements which need to be in the disclosure in a clear and conspicuous fashion, or you do not have prior express written signed consent.  These elements are:

  • Signature of the person called (can be in electronic or digital form);

  • Telephone number to which the signature authorizes calls;

  • Clear and conspicuous disclosure informing person that agreement authorizes seller to call using an ATDS or prerecorded voice;

  • Statement that person not required to sign agreement as a condition of purchase[1]; and

  • Statement that person can revoke consent through any reasonable means.[2]

You should maintain a record of this opt-in for a period of at least five years after any contact.  You should also be aware that if the number is disconnected and reassigned, the consent is no longer valid.[3]  You need to “scrub” against disconnected numbers even if a consumer opted in using compliant consent language.

Please do not hesitate to contact me if you have questions regarding compliance with this issue.

[1] 47 C.F.R. § 64.1200(f)(8).

[2] While the TCPA and TSR do not require this disclosure, some states do and if your telemarketing campaign is national, you should include this statement.

[3] The Federal Communications Commission (“FCC”) is considering changing the rules regarding transferred numbers.