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The Affiliate Marketer’s Guide to TCPA Compliance (+Checklist)

March 31, 2021

For many affiliate marketers, TCPA compliance can be an enormous issue. Noncompliance with TCPA rules can lead to extended (and expensive) legal battles. Affiliate marketers can run afoul of TCPA compliance issues all too easily—especially when their affiliate marketing campaigns are filled with fraud.

What is TCPA? What are the litigation risks that marketers face from it? What myths about TCPA should marketers know about? Most importantly, how can affiliate marketers meet TCPA compliance requirements?

What Is TCPA?

TCPA is an acronym for the Telephone Consumer Protection Act of 1991. It is a Federal Communications Commission (FCC) regulation that places restrictions on how, when, and why businesses may communicate with “Residential Subscribers” (individuals who have contracted with common carriers for telephone exchange services at a personal residence).

The rule was initially designed to prevent nuisance telemarketing calls to U.S. citizens' personal landline phones. However, the regulation has received numerous updates over the years as new telecommunications technologies have emerged. For example, prohibitions on sales call activities have expanded to include sending autodialed or prerecorded calls and text messages to consumers’ cell phones. Also, the creation of the national “Do-Not-Call” registry imposed further penalties and restrictions on companies that reach out to contacts on that list.

The National Association of Consumer Advocates (NACA) summarizes some of the restrictions of TCPA. The list states that, unless consumers give callers written consent previous to communications, sales callers may not:

  • Call before 8:00 AM or after 9:00 PM
  • Call people who have opted out of communications or are on the Do Not Call registry
  • Send unsolicited fax messages to a person’s home or office (per the Junk Fax Prevention Act of 2005)
  • Refuse to provide their name, the name of the person or organization on whose behalf they’re calling, and contact info for that person/organization

The Growth of TCPA Litigation

In the decades following the creation of the TCPA, there have been numerous lawsuits made by individuals and classes over perceived TCPA violations. There have also been numerous penalties imposed by U.S. courts against companies for violations of the law—which can quickly become extremely expensive.

As stated by Contact Center Compliance at DNC.com, “unintentional or accidental violations of the TCPA can result in damages up to $500 per call. Intentional violations increase that to up to $1,500 per violation.” So, just ten violations could cost anywhere from $5,000 to $15,000 dollars.

DNC.com also notes that individual TCPA lawsuits “can reach into the tens-of-thousands or even hundreds-of-thousands of dollars.” This does not include the cost of hiring an attorney to represent the company in court. Meanwhile, data cited in the DNC.com article states that “Class actions constituted more than one third of all TCPA lawsuits.”

As new additions are made to the TCPA and courts continue to make rulings that set new legal precedents, the risk of TCPA lawsuits increases. For example, as noted by JDSUPRA, a decision by the U.S. Supreme Court on July 6, 2020 in the Barr v. American Association of Political Consultants, Inc. case: “clears the way for a flood of TCPA-related lawsuits.” While this specific case was related to the use of robo-dialer systems for debt collection, such legal precedent showcases how seriously the Supreme Court treats the protection of consumers from unwanted communications.

Affiliate marketers who have been given fraudulent information by malicious affiliates may end up accidentally breaching some TCPA rules. This, in turn, can expose their company to massive fines or lawsuits (either individual or class action). Because of this, it’s very important to have clean affiliate marketing campaigns that are as free of fraud as possible.

Common Myths Affiliate Marketers Believe about TCPA

There’s a lot of information out there about the TCPA—but not all of it is true. To achieve TCPA compliance, it’s important to sort out the good information from the bad. Here are a few common TCPA myths that affiliate marketers should watch out for:

Myth #1: TCPA Rules ONLY Apply to Calling Landline Phones

While the TCPA was initially designed to address calls to landline residential phones, the rules have been expanded since then to include cell phones, fax machines, and other communication channels. This was done to help ensure the rule could continue to meet its goal of preventing unwanted, unsolicited, and intrusive communications.

Myth #2: I Don’t Need Consent if It Isn’t a Sales Call

Some companies might assume that, if they aren’t calling about sales, then they don’t need consent to call per TCPA compliance guidelines. However, this isn’t the case. As noted by call center software provider TCN, “If you are calling a wireless number to provide information or conduct a survey using an autodialer, prior written consent is always required.”

Myth #3: I’m Not at Fault if My Contact Changes Phone Numbers

Some affiliate marketers may have contact information that is legitimate when first collected, but is rendered obsolete later—such as when a contact changes phone numbers. When this happens, a new consumer may end up with the old contact’s phone number.

If an affiliate marketer reaches out to such a contact, they’re still in violation of the requirement to receive previous written consent to engage in telemarketing activity. The TCPA puts the burden of identifying and removing obsolete contact information on the affiliate marketer, not on the consumer.

Myth #4: An Existing Business Relationship Always Allows Me to Call Someone with Marketing or Sales Messages

In the TCPA, there is a rule stating that:

“Any person or entity making telephone solicitations (or on whose behalf telephone solicitations are made) will not be liable for violating this requirement if… The telemarketer making the call has a personal relationship with the recipient of the call.”

 

This may mislead some marketers into thinking that, as long as they have a prior business relationship, then they always have permission to make marketing calls. This is not the case.

For example, an "existing business relationship" can be superseded by the consumer opting out of further communications from the marketer. In fact, the FCC requires that, in automated communications, marketers must “provide a telephone number that consumers can call during regular business hours to make a company-specific do-not-call request.”

Myth #5: I Don’t Need to Document My Call Procedures

One of the most important things a marketer can do for TCPA compliance is have a set of written procedures for how they handle their marketing calls. Having a document to show the FCC and the courts how marketing calls are handled can be crucial for protecting against fines and other penalties for inadvertent TCPA violations.

How to Achieve True TCPA Compliance

Achieving full TCPA compliance can be extremely difficult for companies with affiliate marketing programs. However, following a TCPA compliance guide and leveraging key compliance solutions can be well worth the time and money invested.

With this in mind, here’s a quick TCPA compliance checklist to help you get started:

The Affiliate Marketer’s TCPA Compliance Checklist

Compliance Requirement

Yes

No

Not Sure

Do I have a recent (less than 3 months old) copy of the National Do-Not-Call registry?

 

 

 

Do I have a convenient “unsubscribe” option in my telephone and email communications?

 

 

 

Do I have written procedures detailing how I scrub my contact database and comply with TCPA requirements?

 

 

 

Is there an organization chart showing who is responsible for TCPA compliance?

 

 

 

Is there a process flow chart showcasing the plan for TCPA compliance?

 

 

 

Are there recorded policies and procedures for:

  • Recording requests to not receive phone calls
  • Placing consumers’ names in the company’s “do not call” list
  • Maintaining the “do not call” list
  • Complying with national do not call rules
  • Correcting data that is found to be outdated

 

 

 

Do I have a list of people who have specifically opted out of communications from my company (with date and time stamps)?

 

 

 

Do my affiliate marketing campaigns have a specific callout for getting permission to contact affiliate marketing leads/contacts by phone or email?

 

 

 

Does my company provide training on TCPA to marketing and sales team members?

 

 

 

Does my calling equipment (phone, computer, etc.) provide clear and accurate Caller ID information?

 

 

 

 

How Ad Fraud Solutions Help You Achieve TCPA Compliance

You may be wondering: “Why is an ad fraud solution provider offering a TCPA compliance guide?” The answer is that ad fraud can be a massive TCPA compliance risk. So, an ad fraud solution can indirectly work as a TCPA compliance solution.

How so?

One of the problems with affiliate marketing fraud is that not all affiliates will provide real results. Some less scrupulous affiliates might opt to commit fraud using bots, malware, or human fraud farms.  This type of fraud can generate leads using real people’s information, from people who never really opted into receiving your communications.

If you reach out to consumers using this fraudulent information, you could open up your company to TCPA compliance violations. The more you rely on fraudulent information, the worse the costs will be.

For example, if you reach out just one time to 1,000 people who never opted into your marketing messages, your company could face between $500K and $1.5 million in fines for TCPA violations. This is on top of any potential lawsuits from individuals or class actions.

By helping to keep your affiliate marketing campaigns free of fraud, ad fraud solutions like Anura can become prime TCPA compliance solutions for a business.

Need help keeping your marketing campaigns fraud-free? Reach out to the team at Anura today to get started!

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