In the context of lead generation and the Telephone Consumer Protection Act (TCPA), "consent" refers to the permission given by a consumer for a company to contact them, typically through phone calls, or text messages. The TCPA is a U.S. federal law that places restrictions on telemarketing calls, auto-dialed calls, prerecorded calls, and text messages. It is designed to protect consumers from unwanted and intrusive marketing practices.
Here's a detailed look at what consent entails in this context:
Explicit Written Consent
For telemarketing calls, particularly those that are auto-dialed or contain a pre-recorded message, the TCPA requires explicit written consent from the consumer. This means that the consumer must actively agree (often in writing, which can include electronic formats such as email, website forms, or text message) to receive such communications. Simply having a business relationship with the consumer does not constitute consent.
Clear and Conspicuous Disclosure
When obtaining consent, companies must provide a clear and conspicuous disclosure that the consumer is agreeing to receive calls or messages from that specific entity. This disclosure should include the nature of the messages (e.g., marketing calls).
Not Conditioned on a Purchase
Consent should not be a condition of purchasing goods or services. Consumers should be able to give their consent freely without feeling pressured to do so in order to buy something.
Revocation of Consent
The consumer must have the ability to revoke their consent at any time, and the company must honor this revocation promptly.
The Telephone Consumer Protection Act (TCPA) does not specify a particular time frame within which a consumer's revocation of consent must be honored. However, it does require that the revocation be honored promptly. This means that once a consumer indicates their desire to revoke consent, the company should take immediate steps to ensure that the consumer is not contacted further in the manner to which they had previously consented.
In practice, companies are expected to implement efficient systems to process and honor revocation requests as soon as they are received. This is important both for compliance with the TCPA and for maintaining good customer relations. Any delays in honoring revocation requests can potentially lead to complaints and legal issues under the TCPA.
Companies are advised to keep detailed records of how and when consent was obtained, as this information might be needed to prove compliance with the TCPA in case of a dispute.
DNC (Do Not Call) Lists
The TCPA also governs the National Do Not Call Registry. Even if a business has received consent, they must also check this registry and refrain from calling any numbers listed on it.
Additional State Laws
Some states have their own laws regarding telemarketing and consumer consent, which can be more stringent than the federal TCPA regulations. Businesses must comply with these laws as well.
Several states in the U.S. have enacted or are considering their own laws regarding telemarketing and consumer consent, complementing the federal Telephone Consumer Protection Act (TCPA). Some notable examples include:
In 2021, Florida amended the Florida Do Not Call Act and the Florida Telemarketing Act. These amendments tightened restrictions on callers, limited the number of calls that could be made within a 24-hour period, created prohibited calling times, and established a private right of action for violations. Additionally, the amendments included provisions for attorneys’ fees and costs in favor of the consumer.
Oklahoma proposed the Telephone Solicitation Act of 2022, which largely follows the Florida legislation. This Act includes an expansive definition of "autodialer" and prohibits telephonic sales calls involving automated systems for dialing numbers without prior express written consent. The proposal also restricts the number of calls to no more than three in a 24-hour period and limits calling times to between 8 a.m. and 8 p.m.
Georgia and Washington
Both states are considering legislation that would create a private right of action for violations of the state’s Do Not Call Registry rules. This includes provisions for recovery of actual damages or $1,000 per violation. In Georgia, Senate Bill 364 is pending in the House of Representatives, while in Washington, House Bill 1650 has passed the House and is under consideration by the state Senate.
These state laws reflect a growing trend towards more stringent regulation of telemarketing practices, emphasizing the importance of consumer consent and providing mechanisms for enforcement and redress.
It's important for businesses engaged in lead generation and telemarketing to understand and comply with the TCPA guidelines to avoid significant fines and legal issues. Practices around consent are not just legal requirements but also help in building trust and a positive reputation with consumers.