June 24, 2019

June 24, 2019

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The Telephone Consumer Protection Act

Many companies’ sales and marketing department have no idea that there is a law on the books that generally prohibits the use of robocalling or SMS texting for sales and marketing purposes without the express written consent of the recipient.

Many of us get spam calls on our cell phones and residential phone lines (if they still exist) on a daily basis. It has become such a problem that most of us will not answer our residential or cell phone unless we actually recognize the number.

The Telephone Consumer Protection Act (TCPA) was designed to prohibit the use of robocalling or texting for sales and marketing purposes so we would not receive unwanted sales and marketing calls and texts. It requires that companies that wish to use robocalls or texts for sales and marketing purposes to obtain “express written consent” from the consumer before texting or robocalling for marketing purposes.

We continue to be astounded at the number of companies that do not even know that this law exists. Although it is true that many companies and scammers completely ignore the law, legitimate companies may wish to pay attention to it when developing and implementing a sales and marketing campaign. Why? Because the potential damages for violation is a minimum of $500 per text, up to $1,500 per text—and is basically strict liability unless you can show that you obtained express written consent before you texted or called the consumer.

Plaintiffs’ attorneys have found a new source of income, and that is the TCPA. Unsuspecting legitimate and well-known companies have been hit with class action cases alleging violation of the TCPA and there is basically no defense.

The biggest cause of lack of compliance with TCPA? Enthusiastic marketing and sales personnel in companies. They want to get their new products and services out to the market, and they want to do it by texting and calling. That’s fine—but the sales and marketing campaign should be vetted by legal to make sure it complies with TCPA.

The key to TCPA compliance? Communication between the sales and marketing team and the legal team. When sales and marketing has a brilliant idea—pass it by legal before the campaign is launched.

Copyright © 2019 Robinson & Cole LLP. All rights reserved.

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About this Author

Linn F. Freedman, Robinson Cole Law Firm, Cybersecurity and Litigation Law Attorney, Providence
Partner

Linn Freedman practices in data privacy and security law, cybersecurity, and complex litigation. She provides guidance on data privacy and cybersecurity compliance to a full range of public and private clients across all industries, such as construction, education, health care, insurance, manufacturing, real estate, utilities and critical infrastructure, marine, and charitable organizations. Linn is a member of the firm's Business Litigation Group and chairs its Data Privacy + Cybersecurity Team. She is also a member of the Financial Services Cyber-Compliance Team (CyFi ...

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