The Myth of the TCPA-Compliant Lead
by Michele Shuster
Is there such a thing as a TCPA-compliant lead?
Lead generators can be valuable partners for businesses trying to identify and reach prospective customers through marketing campaigns involving calls or texts. However, these leads don’t come without risk and it can be difficult to verify leads to ensure that the consumer properly consented to the call or text. As a consequence, lead buyers and lead sellers both face a risk of TCPA liability. In other words, the “TCPA-compliant lead” is only a myth. However, lead sellers and lead buyers can mitigate their TCPA liability by aligning leads with diligent call practices.
The TCPA requires callers to have consumers’ prior express written consent when making telemarketing calls or texts to wireless numbers using a prerecorded voice or autodialer and when making any calls to landline numbers using a prerecorded voice. Further, the TCPA prohibits any calls to numbers on the national Do-Not-Call (DNC) registry or the company’s specific DNC list, except with prior express written consent or where an established business relationship exists. Company-specific DNC requests must also be honored.
The penalties for violations quickly add up, with damages ranging from $500 per violation to $1,500 for willful violations. Courts have held lead buyers and lead sellers vicariously liable for the other’s actions. States are stepping up their own regulations and enforcement as well, creating similar consent and DNC requirements, and in some cases, requirements that go beyond the TCPA.
So how can a business align its leads with compliant calling practices? To start, lead buyers and lead sellers should ensure calls match the scope of consent. TCPA litigation often focuses on whether the consumer consented to the call and whether the call exceeded the scope of consent. Proper consent should specify the number to be called and which entities may call such number, the purpose and frequency of the calls, and clearly authorize the company to call the consumer using an autodialer or prerecorded voice. The consent should be in writing and signed by the consumer.
In addition, lead buyers and lead sellers should include appropriate TCPA compliance reps and warranties in contracts. Protections to consider adding include:
- restricting the use of high-risk lead sources, such as sweepstakes.
- noting whether the use of third-party lead collection will be permissible.
- clearly identifying consent specifications and limiting the unanticipated use of leads.
- ensuring indemnity provisions protect against any breach or alleged breach of the TCPA or similar state laws.
- potentially requiring the calling party to carry TCPA liability insurance.
Finally, because contractual promises do not always translate into consistent performance, it is important to implement TCPA compliance policies that include periodic lead audits, regular scrubs against state and federal DNC lists and company-specific DNC lists, and frequent TCPA and similar state laws compliance training.