Facing Facts: Two Truths About the TCPA

John Tallarico

The Telephone Consumer Protection Act (TCPA) has been guiding us since our computers ran on MS Dos and dial up modems were considered bleeding edge. It can cost organizations millions in class action lawsuits, and it is here to stay.

No matter how hard we try to comply with TCPA, we find ourselves battling it every day. Whether fighting a class action lawsuit, or fighting to get clarity over the broadness of language like 47 U.S.C. § 227 – Restrictions on use of telephone equipment [The term “automatic telephone dialing system” (ATDS) means 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].

Last week I spoke at the Telecommunications Risk Management Association (TRMA) Spring Conference in Scottsdale, Arizona. My panel focused on TCPA and the audience’s questions ran the gamut: what is considered compliant under TCPA, what should companies be doing to remain compliant, the latest information about pending lawsuits, and finally, what the industry should do in an effort towards modernizing TCPA . The questions were inspired by lots of uncertainty and confusion still remaining in the industry.

Despite the uncertainty, below are two things about TCPA that are fairly clear:

Question: Can I dial mobile numbers on an ATDS for informational purposes?

Answer: Informational and other calls that do not involve telemarketing can continue to be made under current rules of consent for calls made to wireless phones. Calls made by a wireless carrier to its own customers, without a charge for the call, remain exempt as well.

Question: Can I dial mobile numbers on an ATDS for sales and marketing purposes?

Answer: There is a Written Consent Requirement which requires callers to obtain prior express written consent from the called party before placing an autodialed or prerecorded telemarketing call to a wireless phone number.

If you are seeking clarity outside of the consent requirements above, or risk-free strategies, I am of the opinion that it does not exist in today’s environment. We are all hyper-focused on the question of “system capacity.” Show me a PBX that does not have the capacity to store telephone numbers or dial them, better yet, show me a smartphone that cannot do the same. Is this what is intended under 47 U.S.C. § 227? I think not.

The world was a very different place when the TCPA was passed by congress. A lot has changed since 1991 – communications being a big part of that change as there are more mobile phones in this country than there are people. I believe that although the TCPA is designed with the right purpose in mind – to strike a balance between protecting the rights of consumers and allowing businesses to use technology effectively – it is time to call for the modernization of these laws. It is time to stop calling consumers 1000 times and leaving 100 messages. It is time to make sure you have the right phone number and follow deactivation rules. It is time to allow technological advancements to be used in calling the most commonly contacted numbers on the planet, those belonging to mobile phones. It is time to find a new reality – and get with the times.

Disclaimer – John Tallarico is not an attorney and the views stated above are not intended as legal advice, guidance or opinion.

As the Vice President of Product Management for SoundBite Communications, John is responsible for the strategic evolution and delivery of product features and functionality within the company’s cloud-based platforms – SoundBite Engage™ for multi-channel communications and SoundBite Insight for preference management. John frequently participates in regulatory discussions which impact our clients including lobbying efforts with ACA International.