The Two Pillars of TCPA Compliance

On Behalf of | Dec 13, 2023 | TCPA

The TCPA (Telephone Consumer Protection Act) and the FCC’s (Federal Communications Commission) implementing regulations are full of technical requirements for calling and texting campaigns. They’re are all built around two core pillars:

  1. Restrictions on pre-recorded/artificial voice calls, and
  2. Solicitation calls to numbers on the National DNC Registry

There are various ways to comply with both restrictions.

Pre-Recorded and Artificial Voice

The first pillar concerns calls made with an autodialer and/or pre-recorded or artificial voice.  With few exceptions (like emergencies), those calls can only be made to people who consented to receive them. “Prior express consent” must be provided by the person called if the call is transactional or informational in nature, and “prior express written consent” is needed if the call is considered telemarketing or an advertisement. See 47 U.S.C. 227(b)(1)(B); 47 C.F.R. §§ 64.1200(a)(1)(iii), (a)(2).

For many years, Plaintiff’s lawyers successfully convinced many courts to effectively expand Congress’s definition of what qualifies as an autodialer. The US Supreme Court rightly corrected that mistake in April 2021, find the full decision here.

As a result, technology that depends on you, the customer, to supply the phone numbers that you’ll call is not considered an “autodialer” under the TCPA, leaving pre-recorded/artificial voice calls under this first pillar. The path to compliance is simple: just don’t make those calls without prior express consent.

Making calls with live agents, rather than using pre-recorded or artificial voice, will ensure you do not violate sub-section 227b of the TCPA (227b). But if you do have consent from the people you intend to dial, many modern dialer tools have pre-recorded voice and voicemail features to meet your needs.

Calls to Numbers on the National DNC Registry

The second main pillar of compliance deals with calls to numbers on the National DNC Registry. This subsection of the TCPA (227c) prevents you from making sales calls to people who have registered their phone numbers on the DNC, unless you have that person’s consent, or an “established business relationship” (EBR) with them. An EBR can be a scenario where they have made an inquiry to your business, which allows you to follow up with them for 3 months, or if they made a transaction, which allows you to call them for 18 months from the end of the transaction.

To remain compliant under the TCPA, there are two main paths you can take for making sales calls to new contacts with whom you don’t have an EBR or consent:

  1. Scrub your calling lists against the DNC registry to ensure that you’re only calling numbers that have not been registered. Tools like Readymode make that easy by including an integration with DNC.com’s scrubbing services.
  2. Or don’t make sales calls to those numbers. If the purpose of the call isn’t to advertise something that you or one of your business associates wants to sell (whether property, goods, or services), those are ordinarily not sales calls. For example, calls about employment opportunities for the called party, or to purchase something the called party advertised for sale (a house, a car, etc.), generally do not implicate the DNC rules in the first place because the campaigns aren’t designed to sell anything to the called party.

In short, if you can steer clear of pre-recorded/artificial voice calls, you’re on the right path in your compliance journey. And if you’re making sales calls, be mindful of the TCPA’s DNC rules.

For more information or for a consultation, contact us using the form below or call 703-485-3535 for Tysons Corner, VA or 804-441-8440 for Richmond, VA.

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