Imagine your organization has to pay $925 Million for making unlawful phone calls—a penalty that could have been avoided. This was the case in Wakefield v. ViSalus, Inc where the defendant, a marketer of weight loss products, made 1.8 million phone calls with a violation of $500 per call.
The calls violated the Telephone Consumer Protection Act (TCPA), passed in 1991, which requires prior express written consent for non-emergency automatic dialing systems, artificial or prerecorded voice messages, text messages, and fax machines.
The cost of non-compliance and TCPA-related litigation, arbitration, and demand letters can reach millions of dollars as in the case of Wakefield. Damages awarded to consumers can be as high as $1,500 per non-compliant call or text. Additional damages and penalties can be accessed at the judge’s discretion. To be compliant, the burden falls on the company to prove that consumer consent was given.
Covering Your Assets
TCPA is a strict liability statute, which means that a violation of the TCPA imposes liability on the offender regardless of intent. In other words, there’s no defense for not having proof of consent. While the $925M judgment is rare, costly judgments are not, and the damages to a brand’s reputation can outpace even the financial loss. Therefore, TCPA compliance is critical for every organization. A threat to companies of all sizes, in all different areas of the business face, recent high-profile cases include:
- American Express: $8.25M settlement for the use of an autodialer without obtaining prior express consent, and vicarious liability (dealing with a third-party Marketing company).
- Sirius XM: $35M settlement for DNC list management, autodialers, third-party Marketing firms (vicarious liability)
- iHeartmedia: $8.5M settlement for prior express consent
- Wells Fargo: $16.3M settlement for prior express consent
- State Farm: $7M settlement for third-party Marketing services (vicarious liability)
There are several reasons why some organizations feel they are not at risk. But, it is nothing short of foolish to ignore this very real threat.
To ensure TCPA compliance, organizations should invest in a solution to document proof of that consent, allowing the company to deter and help defend against the costly and rising number of TCPA complaints. Organizations should ensure that proof of consent is stored and available in perpetuity because you never know when a plaintiff or class action lawsuit will come knocking. Solutions should allow you to monitor leads for consent in real-time while ensuring compliance with evolving consumer privacy regulations. Ask these questions to ensure compliance:
- Do you know definitively that the consumer consented to be contacted on the lead form and have persuasive proof the appropriate consent took place? Do you have this proof of consent stored in a location that can be retrieved for years in the future in case of a lawsuit?
- Do you clearly understand how the firms you work with are driving calls and texts to you and where the original consumer data and phone number originate from?
- Have you asked if firms you’re working with are dialing or texting consumers that have filled out an outline or mobile lead form?
- Can you ensure that you can trace call data to the original lead form?
- Did you acquire the appropriate permissions to transfer or make outbound calls or SMS messages?
Jornaya’s TCPA Guardian acts as an independent source of truth about a customer’s experience by validating that each lead was generated in a compliant manner before making a risky dial or SMS. Jornaya also provides persuasive proof of consent with our Compliance Report and Visual Playback, which are available in perpetuity, and have been used to successfully help clients avoid and dismiss TCPA lawsuits.