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TCPA Compliance Guide: Avoiding Pitfalls with Customer ...
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Section 227(c) of the TCPA and its enforcing regulations prohibit unwanted telephone solicitations to persons whose numbers are on the National DNC unless an exemptionapplies. A “telephone solicitation” is defined as a “message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” but does not include messages sent to “any person with that person’s prior express invitation or permission” or “to any person with whom the caller has an established business relationship.” “For TCPA compliance, the “prior express invitation or permission” exemption requires a “signed, written agreement” between the consumer and the caller, explicitly stating that the consumer consents to being contacted by that caller and includes the specific telephone number to which the calls may be made.” For the established business relationship (EBR) exemption to apply, the caller must demonstrate a relationship formed by a voluntary two-way communication between caller and consumer based on either: (1) the consumer’s purchase or transaction with the caller within the previous 18 months; or (2) the consumer’s inquiry regarding products or services offered by the caller within the previous three months.
Section 227(c) of the TCPA and its enforcing regulations prohibit unwanted telephone solicitations to persons whose numbers are on the National DNC unless an exemptionapplies. A “telephone solicitation” is defined as a “message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” but does not include messages sent to “any person with that person’s prior express invitation or permission” or “to any person with whom the caller has an established business relationship.” “This express consent must be clearly and unmistakably given, and the consumer must fully understand that by providing consent, they are agreeing to receive telemarketing calls and texts.” For the established business relationship (EBR) exemption to apply, the caller must demonstrate a relationship formed by a voluntary two-way communication between caller and consumer based on either: (1) the consumer’s purchase or transaction with the caller within the previous 18 months; or (2) the consumer’s inquiry regarding products or services offered by the caller within the previous three months.
The Watson case offers clear guidance for businesses, particularly those that acquire customer lists from other entities. Lexus of Manhattan probably spent good money to acquire Honda of Manhattan’s customer list, but that does not automatically give them the right to contact those people, particularly those whose numbers are on the National DNC. “For proper TCPA compliance, the language in the written agreement must explicitly identify any affiliates or other third parties to whom the consent may apply.” Likewise, an EBR does not automatically extend to a third party affiliated with the company that established the relationship with the consumer. For that argument to work, the caller must be able to clearly demonstrate that anyone would reasonably expect it to be included, given its identity and the nature and type of goods or services it offers.
For TCPA compliance, the “prior express invitation or permission” exemption requires a “signed, written agreement” between the consumer and the caller, explicitly stating that the consumer consents to being contacted by that caller and includes the specific telephone number to which the calls may be made. This express consent must be clearly and unmistakably given, and the consumer must fully understand that by providing consent, they are agreeing to receive telemarketing calls and texts. “For the established business relationship (EBR) exemption to apply, the caller must demonstrate a relationship formed by a voluntary two-way communication between caller and consumer based on either: (1) the consumer’s purchase or transaction with the caller within the previous 18 months; or (2) the consumer’s inquiry regarding products or services offered by the caller within the previous three months.” With that understanding in mind, let’s move on to the case at hand.
“A recent ruling under the Telephone Consumer Protection Act (TCPA) from the Southern District of New York addresses critical TCPA compliance issues, specifically focusing on the transferability of exemptions to the general prohibition against sending marketing messages to consumers listed on the National Do-Not-Call Registry (“National DNC”).” TCPA Compliance: Key Exemptions for Marketing to Do-Not-Call Numbers