Ignorance of the law is no defense. Even if that law was never voted on, but just a huge new regulation that was passed by the FCC. The Class Action lawyers are already lining up to extort money from companies. Marketing and sales maybe the new uninsured liability for digital companies. Did your company break the law today?
It is now illegal to call a consumer’s mobile phone without expressed written consent.
What is the Telephone Consumers Protection Act (TCPA)
In response to consumer complaints about the annoying and often harassing robocalls, the FCC passed a sweeping new regulation on July 10, 2015. Called the Telephone Consumer Protection Act (TCPA) it carries the potential for huge punitive and compensatory damages in class action cases. Under the regulation, companies must have expressed written consent in order to contact any consumer’s mobile phone. This regulation includes both phone messages and text message. The act only applies to equipment that has the capacity to store and make automated calls. Since all digital phones have the “capacity”, there are no foreseen exceptions. The call must be placed to a mobile phone for the regulations to apply, but it’s the callers responsibility to verify if the number is a mobile or land line.
What this means to the marketer
Marketers now have the ability to put their company in serious legal and financial jeopardy. Passing on the phone number of that sales ready lead could trigger a massive class action lawsuit. The workflow and automation currently in place no longer serve you, but could be evidence of intent to systematically violate the consumer protection law on a grand scale. All of the contact information and phone logs that once were gold in your CRM could now be a list of that parties and condemning evidence in the class action lawsuit.
Four Things All Companies Should Do Immediately
1. Identify all mobile numbers in your database
Land lines are not affected by this ruling. If your business is mostly B2B, this new regulation may not have as big of an impact as B2C focused companies. Free online resources exist to identify mobile numbers. Additionally, companies can provide this information in bulk for you to segment which numbers are land lines and thus unaffected.
2. Get permission from your current customers
Unless you have records of when they explicitly gave you permission to contact them by cell, you may no longer call. Even a call to a long time customer or advocate needs prior documented authorization. Since you can no longer originate a phone call to them to get permission, you can ask in other ways. When they call you, confirm it’s ok to call them back on this number and document the call. In you next email add a Call To Action (CTA) that leads to an opt-in form to confirms and records their desire to be called on their mobile device.
3. Add an authorization box any time you collect a phone number
According to the opinion about the TCPA in the National Law Review , just because a consumer provides a phone number it does NOT imply explicit permission to call them. Placing a disclaimer on your website or contact form does not meet the requirements. Much like adding a check box or authorization form to the terms of service, the consumer must take action that you must keep and reference as legal justification. Only if a consumer has agreed to this mandatory field or condition should you capture the phone number they have provided.
4. Get advice from your legal counsel
Like all regulation, the specifics of the TCPA will be defined in the courts. Taking some positive actions now may show good faith and an honest effort to comply with the law. This may make your company a less likely target for class action lawsuits or potentially lower the punitive damages awarded.
“Marketers Ruin Everything”
Gary Vaynerchuk once said “Marketers $#^&-up everything.” He was right again. This regulation is in reaction to the worst in our industry. Those that see their customers as adversaries and not allies. Those that want to sell their stuff, instead of helping the customer solve a need. As we get more powerful tools, it’s paramount to use them in a manner that benefits the consumer instead of exploiting them.
Is the new regulation fair?
- As a consumer going into an election year, I’m thrilled the robocalls will stop.
- As a business owner, I’m terrified of the class action lawsuits that will destroy good companies.
- As a marketer, I’m excited to see how the best in our field who focus on a permission based, service driven strategy will respond to this new regulation to differentiate themselves and their brands.