How to Evaluate the Legality of an Outbound Calling Campaign

I have probably reviewed thousands of outbound calling campaigns in an effort to ensure they comply with federal and state law.  I often use just two questions to determine compliance.  Now, for a short time only, I’ll give you these two questions FOR FREE!

  1. Do your calls comply with “do-not-call” list rules?
  2. For calls to cell phones, do they comply with the Telephone Consumer Protection Act (“TCPA”) “cell phone call ban[1]”?
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Dealing with the “Professional” Nuisance Plaintiff

Imagine you have a beautiful, ripe apple on your desk that you were saving for lunch.  You notice a fruit fly approaching it, and before you can swish it away, it eats one tiny bite of the apple.  Now if you kill the fruit fly, it will be crushed across your apple, so you let it buzz away.  An hour later, it comes back and eats another bite.  Again, you do not crush it because the whole apple might be ruined and it does not seem worth the effort.  Soon, your apple is ruined, and your office is filled with fruit flies.

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Plaintiffs Say TCPA is a Strict Liability Statute, but “Not So Fast” Says Pennsylvania Judge

As Telephone Consumer Protection Act (“TCPA”) class actions have exploded in frequency, defendants often claim they were unaware of the restriction or that a number had been reassigned to a new consumer or transferred from landline to cell phone, such that the business could not avoid violating the TCPA. 

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Common sense prevails as Court determines Defendant did not use an autodialer

When plaintiffs file class action lawsuits under the Telephone Consumer Protection Act (TCPA), they often challenge the definition of an “automatic telephone dialing system” (ATDS), i.e. an autodialer, as the TCPA prohibits calls to cell phones using an ATDS without the prior express consent of the called party.

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Be Cautious of the Honeypot or You Might Get Stung

Before a phone number can be assigned and given to a consumer, telephone carriers test the number to see if it receives a large amount of phone calls.  Because consumers do not want a new phone number that receives numerous unsolicited calls, the numbers receiving large amounts of calls are taken off the market and deemed “dirty” or “abandoned.”  

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Amended Telemarketing Sales Rule Prohibits Certain Payment Methods

Telemarketers may need to reevaluate the forms of payment they accept in light of the recent amendments to the Telemarketing Sales Rule (“TSR”).  Effective June 13, 2016, the TSR will prohibit remotely created payment orders, remotely created checks, cash-to-cash money transfers, and cash reload mechanisms in all inbound and outbound telemarketing transactions.

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Congress Amends TCPA to Include Exemption for Certain Debt Collection Calls

As part of the Bipartisan Budget Act of 2015 passed on November 2, 2015, Congress created an exemption to the Telephone Consumer Protection Act (“TCPA”) restrictions and now permits prerecorded and automatic telephone dialing system (“ATDS”) calls to cell phones without any consent if the calls are made solely to collect a debt owed to or guaranteed by the United States.

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When Does a Consumer who Requests to be Called Expressly Consent to Those Calls

Both the Federal Communications Commission (“FCC”) and the Federal Trade Commission (“FTC”) have been very specific about what constitutes “prior express consent” for sales calls under the Telemarketing Sales Rule (“TSR”) and the Telephone Consumer Protection Act (“TCPA”).  The “consent” must contain certain elements, and if the form used by the lead generator does not contain those elements, the resulting information is not, legally, “prior express consent.”

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