Comprehensive TCPA Compliance Checklist

Outbound calls and text messages are indispensable for targeted customer engagement and revenue generation. However, these communication channels are governed by strict regulations designed to safeguard consumers from spam and unsolicited contact. 

The Telephone Consumer Protection Act (TCPA) dictates stringent rules around the use of telemarketing and SMS outreach for businesses.

Noncompliance with TCPA regulations can result in substantial financial penalties and legal ramifications, posing a significant risk to businesses. 

This blog post outlines a detailed TCPA compliance checklist. We’ll cover what the TCPA is, discuss essential tips for staying compliant, and provide additional safeguards to help you protect your business from TCPA violations and hefty penalties. 

Enacted in 1991, the Telephone Consumer Protection Act (TCPA) is a federal law designed to put an end to the nuisance and invasion of privacy caused by robocalls and unsolicited telecommunications. 

TCPA establishes regulations for telemarketing calls, text messages, faxes, and voicemails, as well as Voice over Internet Protocol (VoIP) calls.

Regulations under the TCPA set specific limits on telemarketing practices, including permissible call times and the necessity of maintaining a Do-Not-Call (DNC) list. With potential fines reaching up to $1,500 per violation, understanding and adhering to TCPA regulations is not just a legal obligation but a critical factor for your business’s financial health.

Principal TCPA considerations include:

• Do-Not-Call (DNC) lists. Businesses must adhere to the National Do-Not-Call Registry and their own internal DNC list.
• Call time constraints. Telemarketing calls to residential lines are only allowed between 8 am and 9 pm local time for the recipient.
• Robocalls. Prerecorded or artificial voice messages require prior express written consent, even for existing customers.
• Text messages. Automated marketing text messages also require consumer consent.

The following tips and best practices will help ensure your company stays on the right side of telecommunication laws.

Consent is fundamental to TCPA compliance, serving as the legal basis for initiating communications with consumers. 

However, there are two types of consent — express and implied. Understanding the nuances between them is crucial for staying compliant and navigating the regulatory landscape effectively.

Express Consent

Express consent is intentionally and explicitly given by the consumer and should be typically documented in writing. This type of permission is unequivocal, as the consumer directly states their willingness to receive telemarketing communications. Obviously, express consent is robust and detailed, which is critical if you plan to use automated systems for sending messages or making calls.

For express consent to be valid, it must include a few key elements:

• Clarity and transparency. The request for consent must clearly state that by agreeing, the consumer will receive telemarketing messages from your business. This information should be conspicuously outlined, leaving no room for ambiguity about the nature of the communications(i.e., be explicit about the types of communications – calls, texts – and their marketing nature).
• Voluntary agreement. The consent must be given freely, without any coercion or condition of sale. In other words, consumers should not be forced to agree to marketing as a prerequisite for purchasing a product or service.
• Documented consent. Ideally, consent should be documented in a manner that can be easily verified, such as through a signed form or a digital tick-box explicitly stating the consumer’s agreement to receive marketing calls and texts. This documentation proves invaluable if compliance is ever questioned. 
• Clear opt-out. Provide an easy way for consumers to revoke consent at any time.

For digital interactions, you can obtain express consent through checkboxes on online forms that are not pre-checked, ensuring that the consumer actively opts into communication rather than it being assumed by default. Also, be sure to add a clear description of what the consumer is signing up for next to the checkbox. 

Finally, to be on the safe side, make sure each prospect or customer signs an agreement allowing you to call them. Obtaining a digital signature is an explicit and legally binding confirmation that the customer understands and agrees to the terms of communication. 

It’s  worth mentioning again that the customer can withdraw their consent at any time, and you have to act on this request immediately.

Implied Consent

Implied consent is less direct and can be inferred from the actions or the context in which the consumer provides their contact information. 

For example, if a customer provides a phone number on an order form without directly opting out of marketing communications, one might argue that they have given their implied consent to be contacted. 

However, TCPA regulations are rigid, and implied consent may not suffice for automated telemarketing communications.

Here’s what to bear in mind when obtaining implied consent:

• Contextual clues. The circumstances under which you collected the number play a critical role. If the customer provided the number while purchasing a product or service and required no clear opt-out, this might suggest a willingness to communicate further.
• Nature of information given. Implied consent typically covers only those communications directly related to the context in which consumers give contact information. For example, if a customer gives you their number during a transaction, you can reach out to them with feedback or information about similar products or services.
• Limitations. It is important to note that implied consent is not valid for automated calling or messaging systems. These require express, written consent as stipulated under TCPA guidelines. Implied consent does not extend to these areas, and assuming it does can lead to significant legal and financial repercussions.

Keeping detailed and accurate customer records is crucial for staying compliant. 

• Keep track of consent records. Obtaining consent isn’t a set-it-and-forget-it process. It requires ongoing management and verification to ensure the records remain accurate and compliant with regulations. As consumer preferences and contact information can change, it is crucial to routinely update these records to reflect any new information or changes in consent status. Keep the documentation proving when and how each consumer granted permission. Include the method of consent and precise language used.
• Manage your internal Do-Not-Call list. Maintain an up-to-date company-specific list of consumers who have opted out. This internal document should be readily accessible to all agents and integrated into all communication platforms your company uses. Regular updates are essential to ensure that any new opt-out requests are immediately processed and added to the list.
• Check the National DNC Registry regularly. This database is updated once a month, so to make sure your contact list is compliant be sure to compare it to the Registry once every 31 days.

Respecting a customer’s request to opt out of communications shouldn’t be just a legal obligation — it’s essential for maintaining a positive brand reputation and building trust. 

Here’s how to do this effectively: 

• React promptly. Treat opt-out requests with urgency. According to best practices, removal from your contact lists should occur in real-time or as close to it as possible. Every additional outreach after an opt-out increases the risk of a TCPA violation.
• Facilitate the process. Make it easy for a consumer to opt out by providing clear instructions within every communication (i.e., “Text STOP to unsubscribe”). Where possible, confirm to your customer that their opt-out request has been successfully processed.
• Block the contact across all channels. If consumers opt out, implement this requirement across all channels. Remove them from phone call lists, text subscriber databases, and any other marketing contact lists your business maintains.
• Centralize tracking. Log all opt-out requests within your system. This includes the consumer’s contact information, the date and time of their request, and the channels they wish to opt out of.

With evolving TCPA regulations, choosing the right technology is essential for staying compliant and making the most of your outbound call campaigns. 

Let’s break down why your dialing system matters.

Predictive vs. Progressive dialers

Predictive dialers dial multiple numbers simultaneously, hoping to connect with a customer when an agent becomes available. 

This doesn’t always go as planned since there isn’t always an available agent to take the call, which, in turn, leads to a lot of dropped calls. Given that the Act tolerates a maximum of 3% dropped calls, it’s clear that a predictive dialer isn’t a good solution for your call center. 

On the other hand, progressive dialers initiate calls only after an agent is ready, providing a better customer experience and minimizing compliance risks. 

VanillaSoft takes dialing compliance a step further with an intelligent auto dialer that adapts to your team’s real-time capacity, minimizing abandoned calls. 

This translates to a smoother, more efficient calling process while keeping your telemarketing activities within the law. 

Besides, let’s not forget that consumer confidence is crucial for successful calls. Some people are reluctant to answer a call if it comes from an unfamiliar number or if it’s not coming from a local area code. 

VanillaSoft’s SmartCaller ID allows you to display a caller ID on prospects’ phones with a local number matching their area code. 

This way, you can create a sense of familiarity and local presence, which will increase the likelihood that your prospects will pick up. Such an approach can significantly boost the effectiveness of your outreach efforts and build initial trust with potential customers.

The TCPA is a complex law, but the potential consequences of non-compliance are severe. By following our TCPA compliance checklist and implementing best practices, your business can mitigate risks and ensure responsible communication with consumers. However, remember that TCPA regulations aren’t just about avoiding fines. They’re about respecting consumer privacy and preferences, as well as demonstrating your commitment to ethical communication practices while building trust with your audience.