Varying Legal Interpretations Make TCPA Compliance Tricky
Most call centers and third party collection agencies should have all of their outbound telephone traffic within TCPA compliance by this stage of the game. However, the “prior expressed consent” clause of the law is the key legal issue that continues to sink organizations’ TCPA compliance efforts.
But with no less a body than the Association of Corporate Counsel noting the near impossibility of defending against a TCPA compliance lawsuit, settling the proliferating class actions may become the norm, rather than incur the mounting legal fees and damage to the organization’s reputation when trying to defend a case all the way to the conclusion of a verdict.
The reason for that of course being the preemptive cost of defending TCPA compliance cases, in terms of dollars as well as in the damage done to public relations.
Multimillion dollar settlements of class action lawsuits paid in September 2014 by Bank of America and in July of the same year by Capital One illustrate that any companies that are using some form of auto dialing method will always be at risk of the hefty per incident TCPA non-compliance fines.
Which Court’s Legal Interpretation will be Chosen for Your Organization’s Case?
There are so many legal interpretations being rendered upon the various nuances of TCPA law that it is doubtful that any firm using any kind of automatic dialing system can claim total safety from running afoul of them.
Not only are there concerns about different interpretations of TCPA. There is also the problem of how the various courts will handle those interpretations when rendering their decisions.
Some courts, reflecting the stance of the FCC, have said that merely the act of providing a company with a cell phone number is enough to satisfy the prior expressed consent requirement.
Text messages are also included in TCPA. See Roberts versus Paypal, Inc in 2013 (WL 2384242), where the court ruled that giving Paypal his cellular phone number was akin to consent.
When is Expressed Consent Only Implied Consent?
Ultimately, the differing verdicts of the courts in their TCPA decisions rest upon (as is the norm in legal proceedings) the minute nuances of the English language.
The substance of the FCC’s guidance on the matter has been derided by another court as “implied consent”.
That court says that “express” shall be defined as “explicit” rather than “implicit”. Because for the “expressed written consent” to be truly “expressed” a signed statement to that effect is needed. Not simply a cell phone number, as the FCC maintains.
Whose Problem is TCPA Compliance within Your Organization?
All call centers and even IT departments would be well-advised to take whatever precautions they can in anticipating these kinds of legal pitfalls.
The Herculean task of attempting to comply with the often vague and ever changing interpretations of the Telephone Consumer Protection Act must be shared by all members of organizations that engage in making calls using some form of automatic dialing technology:
- Operational Managers
- Customer Support executives
- IT staff
- Customer Service reps
Now, in addition to keeping stacks of complicated computer servers humming and virus free, the operational managers in IT departments are assisting their employers with TCPA compliance requirements.
One way they are doing that is by determining which of their outbound calls are to landline phones, which are exempt from TCPA rules, and which are to mobile devices. Some operational managers are using the Intermodal Ported Telephone Number Identification Service to identify which numbers are which. That service concerns itself with finding out and correcting which phone numbers have moved from landline to wireless or from cell phone to wired.
All in all, TCPA compliance is everyone’s concern and has grown into a large-scale task that requires constant attention and the accompanying oversight into day-to-day operational procedures. All of this added responsibility is just one of the factors playing into the popularity of cloud-based call center software solutions that help keep call centers in compliance with the regulations.