The latest edition of Lead Generation World in San Diego was chock-full of insights on how lead buyers and sellers can accelerate their growth. But performance will only get you so far if it’s not coupled with crucial TCPA compliance support.
To help businesses stay up-to-date on everything TCPA, expert defense attorney Eric J. Troutman of the Troutman Firm led a session jam-packed with important compliance info. And to help you catch up on what you may have missed, we’ve got the video—and an overview of the session’s many highlights—right here for you.
DISCLAIMER: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.
Recent Major TCPA Rulings
During his discussion, Troutman highlighted a number of need-to-know cases from recent months that will shape the year ahead.
Citizens Disability
Signaling a huge, ongoing focus on the issue of lead fraud, a court certified a case against disability advocate group Citizens Disability, finding that they had reached out to fraudulent leads. This, despite the fact that Citizens relied on two major lead suppliers, DMS and Fluent.
According to Troutman, the court is not interested in hearing that an overwhelming majority of Citizens’ leads were legitimate. What they are interested in is certifying the case.
The lesson here for TCPA compliance in 2023? Any sort of “80-20 rule” isn’t going to cut it with the courts and regulators. Any amount of fraudulent leads in your supply is problematic.
Berman v. Freedom Financial
Troutman also touched on the case of Berman v. Freedom Financial Network that unfolded in the Ninth Circuit Court. As Convoso covered at the time, the court found that even the smallest of website-design details—like font size and color, a link’s location and appearance—can decide whether a dispute is resolved in arbitration or litigation.
Virtually instantly, the court’s decision was being cited in other TCPA cases involving disclosure forms. To help protect themselves, businesses should apply three clear design rules based on the decision’s findings:
1. Font cannot be too small or too light, although exactly what the standard is for these is unclear.
2. The button must clearly advise that by clicking it terms are being accepted.
3. Hyperlinks are okay as long as they are clearly marked.
Crucially, lead buyers must also be aware that if their lead sources’ forms always utilize flawed designs, then they might also lack legal protection.
The FCC’s Urth Access Ruling
In another potentially dangerous precedent, the FCC ruled in a case related to the telco carrier Urth Access and Medicare marketplace GoHealth that multi-vertical disclosures are not enforceable. So, if you go to a Medicare website, it does not matter what is in the fine print: only Medicare leads may be generated there. Otherwise, that lead is unenforceable.
According to the ruling, on the marketing partners page of the GoHealth website, there were 5,200 marketing partners. The FCC said, flat out, none of those have consent. 5,200 marketing partners who thought they had consent from that form, including those who sell Medicare, no longer have consent.
The result? The FCC pulled the plug on Urth Access entirely. In turn, cases like these are what have telco carriers in a defensive posture when it comes to monitoring call traffic. “This is why the carriers are terrified right now,” said Troutman. “This is why your traffic is not getting through. This is why your traffic is being marked as ‘Spam Likely.’”
Javier v. Assurance IQ Leads to Confusion Over Session Replay Tech
Another eye-catching case was Javier v. Assurance IQ which included prominent compliance software provider (and friend of Convoso) ActiveProspect. The ActiveProspect tool TrustedForm is used by many lead generators to capture a record of online leads’ consent. However, in what Troutman described as a bizarre ruling, the Ninth Circuit Court of Appeals actually found that TrustedForm was in breach of the California Invasion of Privacy Act (CIPA). In effect, under CIPA, the use of TrustedForm at issue was considered wiretapping.
The recording under consideration in the case captured the plaintiff consenting to terms and conditions. However, the court found that he was recorded before he gave his consent to be recorded, and therefore, a violation of the statute had potentially taken place.
The good news is that since that ruling, ActiveProspect has since won a favorable ruling in a separate case in December 2022. Nevertheless, these issues will continue to be litigated, and in the meantime, the tool must not be deployed until after initial consent is obtained.
Other Areas of TCPA Compliance to Watch in 2023
After Florida introduced its problematic mini-TCPA in 2021, other states have followed suit with equally stringent laws. Now, according to Troutman’s latest info, Michigan looks set to pass its own bill by the end of 2023’s first quarter.
“By the end of March, you can expect a huge omnibus bill out of Michigan,” Troutman said. To prepare, organizations can watch Troutman’s conversation with Convoso’s own Lisa Leight, which covers the Michigan bill’s contents and how it differs from past mini-TCPAs.
Beyond the state-level laws, Troutman said that litigation over wrong-number calling is set to be a focal point in 2023. According to Troutman, 10% of all numbers are reassigned every year, which means that 10% of your portfolio might be turning over every year. Luckily, the FCC maintains a database that can help callers stay protected.
“If you’re, say, a mortgage servicer that wants to make outbound calls to try to sell a refinance product, you need to recognize that the courts say you are strictly liable for those calls,” said Troutman. “You don’t have a safe harbor, you’re not safe. Unless you’re using the FCC’s new Reassigned Number Database (RND). This is a really good database, I highly recommend everyone look into it.”
New Advocacy Group Set to Respond with New Standards
All of these rulings and actions paint a dark picture of the state of TCPA regulation in 2023. Troutman said that much of this is to blame on the one-sided story lawmakers and regulators are getting:
“I cannot emphasize enough how much of that narrative has poisoned policymakers that the folks in Congress, the folks at the FCC, the folks at the FTC, nobody is telling the other side of the story.”
“The deck is completely stacked against marketers because nobody is talking about the value that this industry provides to consumers, [about the fact] that marketers provide a very valuable service that really helps consumers get connected with the information and with the product that they want. That’s all being overlooked.
“I would encourage all of you, along with whatever trade organizations you’re part of, whoever you go to for your media distribution, to be thinking about helping to push back on the prevailing narrative out there—the narrative that the folks in this room are bad actors.”
For his part, Troutman has helped create a new trade organization called REACH, or Responsible Enterprises Against Consumer Harassment. The organization, Troutman says, is designed to get lead buyers together to agree to a set of highly transparent standards. Buyers will not buy leads unless a lead seller meets these standards.
In addition, it’s also designed to assure that the perception of the lead gen industry is changed among both regulators and consumers. Because at the end of the day, if consumers aren’t picking up the phone then all industry’s work is for naught.
Be on the lookout for updates on REACH standards and related events in the months ahead. And to keep up with everything else you need to know about TCPA compliance, subscribe to our newsletter and get the most important updates delivered straight to your inbox each month.
DISCLAIMER: The information on this page and related links is provided for general education purposes only and is not legal advice. Convoso does not guarantee the accuracy or appropriateness of this information to your situation. You are solely responsible for using Convoso’s services in a legally compliant way and should consult your legal counsel for compliance advice. Any quotes are solely the views of the quoted person and do not necessarily reflect the views or opinions of Convoso.