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When it comes to supporting TCPA compliance, today’s businesses seem to be aiming for an ever-moving target. To make matters worse, new hazards and risks seem to crop up nearly every day.

During a recent webinar, “How to Avoid the TCPA Mousetrap: Why Compliance Is Just Half the Battle,” our friends at ActiveProspect hosted experts to discuss the latest trends in these risks. The group included:

During their discussion, they touched on a number of issues that marketers, lead generators, and outbound sales leaders will want to take note of in order to respond to emerging business threats. Tune into the complete webinar at the link above—or catch up on the need-to-know highlights below.



Trends in TCPA Lawsuits and Prelitigation Demands

After the US Supreme Court’s ruling in the case of Facebook v. Duguid, many business leaders may have thought that their TCPA compliance job was about to become easier. Of course, this ended up being far from the truth.

Although the case settled the long-debated issue of defining an Automatic Telephone Dialing System (ATDS), it wound up giving rise to not just one threat but many. That’s because, over the last two years, the TCPA has ceased to become solely a federal issue. Instead, it’s now something that businesses must worry about on a complex, state-by-state basis, as different locations introduce their own “mini-TCPA” bills. 

With all of these new legal hoops to jump through, you might think that it’s actual lawsuits that present the biggest threat to businesses. But that may not be the case, according to the panel.


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Demand Letter Abuses

Even for companies who have done no wrong, TCPA lawsuits present a very expensive potential threat. Just proving your innocence can still cost you between $10,000 and $100,000, says Seth Heyman. That’s why Heyman says businesses definitely shouldn’t ignore demand letters. 

Although they’ve declined in popularity, Heyman warned against businesses writing off the demand letters as a mere attempt to extort them. “Someone’s not exactly doing you a favor by sending you a demand letter, but they’re at least affording you the opportunity to avoid a public lawsuit and maybe save thousands in attorney fees by at least giving you a head’s up.”

Still, there’s a growing issue with these letters, and it’s driving some of the most noteworthy trends in TCPA pre-litigation that the panel discussed: suddenly, malicious actors and groups have arisen and are “weaponizing” these letters.


Beware of Swindlers

The panel focused on one such group—a class of professional litigants making a living off of TCPA suits. 

“These swindlers are claimants who employ fraudulent tactics to manufacture, enhance, or investigate a TCPA claim,” said Heyman. “This TCPA litigation industry has attracted a fair number of career criminals—real-life felons with rap sheets a mile long.”

Heyman attributes this prevalence of underhanded practices to the fact that successful TCPA claims can be significantly more lucrative than common crimes of fraud and theft. Just six calls shown to have been made “knowingly and willfully” in violation of the TCPA can add up to a $7,500 payday for a claimant. According to FBI data, Heyman says, this constitutes more than the amount stolen in an average bank robbery. “All I’d have to do is get some calls and write a letter,” said Heyman. “Compare that to robbing a bank.”


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Social Media Opportunists

Along with this criminal element, many legal threats are being driven by influencers on social media.

That’s because, as it turns out, viral dances and memes aren’t the only outcomes of TikTok’s rise. According to the panel, TikTok is also driving the rise of communities focused on suing marketers. 

“There’s been a rise in class-action threats, there’s been a rise in people with demand letters, and there’s been a rise in courses being sold,” says Michael Harvey. “It’s been huge. And a lot of that happens in Telegram, Discord, Facebook groups—but it’s started by the clustering of people who are interested in that specific topic on TikTok’s algorithm.” 

During their presentation, Michael Harvey shared examples of popular TikTok influencers who have built followings by showing viewers how to exploit federal TCPA regulations in order to reap big paydays.


Practice Consent-Based Marketing

In the face of all these disconcerting trends, how do marketers and lead generators protect themselves and support TCPA compliance?

Yung Chung underlined the importance of creating a robust consent-based marketing practice, outlining these key steps businesses can take to do so:

  • Ensure leads are compliant. Work with partners to understand the steps they are taking to combat fraudulent leads, and leverage compliance tools to scrub your leads for litigants, numbers on the DNC, and more.
  • Prove prior express written consent with documentation. Without additional sources verifying consent, it’s your word against a litigant’s—and you’re likely to lose in court. Protection solutions like ActiveProspect’s TrustedForm and Anura can help you document express written consent with a valid certificate. 
  • Work with expert legal counsel. Legal risk can’t be eliminated, but it can be greatly mitigated with the help of the right experts. Enlist the help of a legal team to build a defensible position and an action plan to help protect your business in today’s risk-filled environment.


Related Content

Dig into more TCPA best practices in this Convoso guide



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.

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