Complying with New TCPA Regulations

Background on the TCPA

The Telephone Consumer Protection Act (TCPA), established in 1991 and signed into law by President George H.W. Bush, requires businesses to obtain explicit written consent before using automated dialing systems for telemarketing.

Non-compliance can result in significant penalties.

In December 2023, the FCC introduced important amendments that will take effect in January 2025.

Key Updates

One-to-One Consent: Consumers must now provide express written consent for calls and texts from each specific business. Lead aggregators cannot sell leads to multiple brands without this consent.

Expanded DNC List: The Do Not Call (DNC) list now includes cell phones, smartphones, and text messages.

AI-Generated Calls: AI-generated phone calls also require written consent.

Relevant Communications: Communications must directly relate to the consent provided.

Clear Disclosures: Disclosures must clearly inform consumers that they may receive robocalls or robotexts.

Steps to Ensure Compliance

1. Capture One-to-One Consent:

Ensure that lead providers' forms and disclosures capture one-to-one consent correctly.
Disclosures must specify the organization to which the consumer is giving consent.

2. Maintain Records of Consent:

Lead generators must record and maintain the consent event. Use technologies that facilitate documentation.

Store proof of consent in your CRM system and data warehouses for reporting purposes.

3. Implement Changes Promptly:

Discuss timelines with your lead providers to ensure compliance before January 2025.

Implement changes in advance if your legal team interprets that you can contact leads up to 90 days from submission.

Industry Impact of One-to-One Consent

Lead Costs and Quality:

Lead costs from aggregators may increase due to new operational methods.

Lead quality could improve as consumers will specify particular brands, reducing unsolicited contacts.

Advantages for Larger Companies:

Larger companies with strong brands and better resources may benefit, as consumers are more likely to choose familiar brands.

Challenges for Smaller Companies:

Smaller and medium-sized companies may face disadvantages, emphasizing the need to build and strengthen brand presence.

Compliance in SMS Marketing

10DLC Registration: Register your texting platform to establish a compliance chain.

Website Scrutiny: Ensure your website meets compliance standards with a dedicated SMS terms and conditions page, appropriate consent language, and clear messaging policies.

Advantages for Larger Companies:

Include your company name in the initial text of any campaign.

Provide opt-out instructions, using “Reply STOP to stop text communication” in all caps.

Compliance in SMS Marketing

Keep Texts Conversational:

Avoid overly promotional content. Focus on eliciting a response.

Keep messages brief and avoid including different phone numbers.

Respect Unsubscribe Requests:

Use straightforward opt-out instructions and avoid circumventing filters.

Monitor Messaging Metrics:

Track message volume, opt-out rates, and delivery rates. Choose a platform that allows for targeted, personalized campaigns.