TCPA Proof of Consent: It’s Only Just Begun

Like a telemarketing version of last year’s Mayan Apocalypse, the world did not end Oct. 16 when new Telephone Consumer Protection Act proof of consent rules went into effect. But that doesn’t mean profound changes haven’t been set in motion.

On the eve of the new regulations, NBC’s Los Angeles affiliate interviewed ActiveProspect Founder and CEO Steve Rafferty to discuss how things will change in visible and material ways for compliance officers, advertisers and consumers.

Unambiguous Consent

Web forms must now include “clear and conspicuous disclosure” (i.e. obvious and readable) about what they are agreeing to by submitting the form, including:

  • He/she will receive future calls that deliver autodialed and/or pre-recorded telemarketing messages on behalf of a specific advertiser.
  • His/her consent is not a condition of purchase.
  • He/she must designate a contact phone number (which cannot be pre-populated by the advertiser in an online form).

Proof of Consent

If a dispute concerning consent arises, the advertiser bears the burden of proof to demonstrate 1) that a clear and conspicuous disclosure was provided, and 2) that the consumer unambiguously consented to receive telemarketing calls to the number specifically provided.

Evidence of Internet-provided written consent can be captured and stored through software services that generate real-time certificates containing:

  • The consumer consent language and fields.
  • An associated screenshot of the consent webpage where the phone number was entered as seen by the consumer.
  • A complete data record submitted by the consumer (with time and date stamp).
  • The applicable consumer IP address.

The Big Unknown

It’s not an exaggeration to say that an overwhelming majority of companies that rely on Internet leads for their telemarketing programs are now at risk for both FCC enforcement and class action lawsuits.

TCPA litigation is one of the fastest growing segments of class action lawsuits. The new requirements for written consent make it even easier for plaintiff lawyers to prove violations – or at least tie you up in expensive and time-consumer discovery. Because the TCPA statute of limitations is four years, businesses should maintain evidence of each consumer’s written consent for at least that long – probably longer.

The question staring compliance officers in the face is whether staying parked in the non-compliance zone a risk worth taking.

For more background on the new TCPA rules, read “Consent to Call? Internet Leads and the Telephone Consumer Protection Act” by telemarketing and Internet marketing law firm Klein Moynihan Turco LLP.

To see what TCPA-compliant proof of consent looks like, you can generate a real-time proof of consent certificate, or review the SlideShare presentation “The 5 Essentials for Documenting TCPA Prior Express Written Consent.”

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