Last month, in WV federal court, Diana Mey filed a proposed class action against Levin Papantonio, MCM, and Principle Law Firm. The suit alleges violations of the TCPA Act related to the Camp Lejeune Litigation. According to the complaint, Plaintiff Mey was on the federal Do Not Call list but was contacted by representatives from MCM.
Some TCPA plaintiffs claim advocacy as the impetus of their cases. In 1997, Mey was named to People’s list of Most Intriguing People of the Year due to her efforts to regulate telemarketing practices. Since then, she has been involved in numerous litigations alleging TCPA violations against different companies.
For others, their “advocacy” might more closely resemble a fishing expedition. In one situation, over a two-year period, a party contacted us 120 times, submitting 3 different telephone numbers across 13 IP addresses. When this party alleged a TCPA violation and requested $3,000, due to our tracking and consent process, we were able to address and dismiss it swiftly.
3 Tips to Keep Your Firm Out of Hot Water
Regardless of the consumer’s intention, it’s important to understand the TCPA, know your partners, and ensure safeguards are in place to prevent becoming a defendant in a TCPA action. Here are a few tips on how to do it.
Know the Law
Understanding the TCPA is the first step to not violating it. The three elements of a TCPA claim are: (1) Defendant called a telephone number, (2) using an “automatic telephone dialing” system or an artificial or prerecorded voice message, (3) without the recipient’s consent.
Besides these basic elements, there are additional regulations to be aware of:
Telemarketing calls cannot be made before 8 am or after 9 pm (local time);
Businesses must maintain their own “do-not-call” list and honor Do-Not-Call Requests for 5 years; and
Callers must identify themselves, on whose behalf they are calling, and a phone number or address at which the caller or entity can be reached.
Screen Your Marketer
Now that you know the law, you can have a competent and informed conversation with your potential marketer. Ask the right questions to ensure they don’t engage in practices such as cold-calling or robo-dialing. For example, “How are the calls being made?” or “What’s the process for contacting a consumer?”
Inquire about how they track and record consumers’ consent to contact. For example, “how do you log consumer consent to calls?” or “how are consumer preferences maintained to ensure they are accessible across the company?”
Request information about how they keep their database current. For example, “what steps are taken to ensure TCPA compliance in follow-up campaigns?”
Transparency is King
Once you've learned about the regulations and screened your marketer to ensure their work is done with integrity, it's time to turn your attention to recordkeeping.
You must ensure that there is a clear digital (or otherwise) record of how contact occurred. Your marketing firm should be able to tell you exactly where each lead is coming from and the methods used to contact that person.
For example, did someone come to your landing page and opt-in to being contacted? Or did someone call your office? Utilizing software or providers who track this information will ensure your firm is in compliance with the TCPA.
TCPA, DNC and Legal Ethics Checklist
Ask yourself the following questions and ensure you are checking all the boxes:
Do you outsource any of your lead generation? Note that using a marketing broker is not necessarily a bad thing, but make sure they are willing to tell you who their advertising partners are and that they are willing to get you access to all of your ad placements.
Do you use affiliate marketing partners? Affiliate marketing isn’t necessarily bad either, but you will need transparency. Affiliate marketing rewards telemarketers who maintain email lists. Some of these lists are stale and can get you into TCPA trouble, or violations of the National Do Not Call registry.
Have you seen your ads? Get a copy of your ads; most state legal ethics require it.
Do you know what your landing page looks like? Have a screen capture of your landing page.
What’s your TCPA language? Confirm that the form, questionnaire, or chatbot used on the landing page has the proper language for a TCPA opt-in.
Can consumers say goodbye? Make sure that every text and email communication made on your behalf has an “unsubscribe” option.
Are robots involved? Confirm that your intake vendor or call center does not use robocallers or automated dialers.
Is someone cleaning the list? Make sure that your marketing partners scrub the client list they are using for outreach on your campaigns every 31 days.
How do you know they are properly cleaning that list? Maintain an internal client marketing scrub process – permission to market to clients and non-clients is not indefinite.
Which platform is keeping track of all this? Use a CRM/intake platform that gives you 100% transparency into every campaign and documents every client outreach by phone and text.
Are there any weak links? Maintain these standards for yourself and your referral partners. Require your referral partners to follow the same standards and ensure they can provide the same details about their clients.
The Bottom Line
No one wants to be responsible for violating the TCPA; we all hate those calls! No one wants to fall victim to serial TCPA filers either.
With the proper knowledge and understanding of the TCPA, plus a robust screening process of marketing partners and, finally, a transparent marketer, you can feel confident that your outreach is TCPA compliant to assist with access to justice.