Here are 9 reasons your company may not care about the Do Not Call TCPA Laws (Even though they should). Some lawyers have flat out told me, “My clients just wait until they have a compliance problem, then call me. They’re making too much money without Do-Not-Call compliance help.”
Although this is becoming a more and more dangerous “business as usual” mantra, it amazes me how many companies follow it. One industry executive said he’s the only one of his trade group to comply with the Do Not Call laws.
“You’re doing so well,” a close friend in the industry told him, “How can you be complying with the TCPA (the Telephone Consumer Protection Act)?
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This video is for informational purposes. Be sure to consult your own attorney for questions specific to your business.
Here are 9 reasons why your company may have no interest in DNC compliance solutions:
1. “We would go out of business if we complied with the Do Not Call laws.”
Chances are greater you’ll go out of business if you don’t comply. The way things are going with increased Consumer Financial Protection Bureau attention, class actions in court, and now increased state prohibitions on cell phone calling, without robust DNC programs in place, it’s a matter of time before major trouble arrives.
2. “We have a compliance officer. They’ve got it handled, I think.”
Like joining a gym and never actually going, some companies feel they can hire a compliance officer that never actually does anything. No contracts with third parties, no internal checking—just having one compliance officer should do the trick.
I had to tell a compliance officer of a major bank last year, “Look, I’m your friend. I’m just here to save your job – as you’re the first person management will blame with no DNC safeguards, policies, procedures,and enforcements in place should a problem occur.”
3. “We’ve never had a problem with the TCPA.”
That’s like saying, “I’ve always driven 90 miles per hour and never had a problem.” Sure, but if you do you’re going straight to jail. Ignorance of DNC and related laws is not acceptable. Worse, given the level of exposure today, it can show intent to get around them.
4. “We’ve always done it this way.”
My personal favorite!
5. “I’m sure if we needed something in compliance, it would have come up by now.”
Really? When it does come up, it could be a tsunami!
6. “We just offer to put folks on our own Do Not Call List. I’m not sure we actually have one, though.”
“…But it sure seems to calm the people down that get mad when we call them. To actually file all that stuff? Too much time.”
7. “I think we have a guy that handles all that for us.”
Really? Does he keep existing business relationship data in the timeframe and format government Agencies would request it during an audit? Is he registered with the National Registry? The states? Does he have a Do Not Call policy to be sent out on demand? Is he familiar with the “safe harbor” requirement?
8. “We are partially compliant.”
Your business may be DNC compliant just enough to show authorities you tried to get around the DNC laws! And that will upset federal and state agencies even more than total noncompliance, and motivate them to request ALL your calling records for the last 30 days. You might even find yourself hit with a cease and desist order until things can be sorted out.
And we haven’t even gotten into the 900-pound gorilla in the room: private right of actions leading tclass action certification. Game over.
9. “The TCPA isn't that specific. I’m waiting until the 40 FCC Declaratory Ruling Proposals are sorted out.”
That could take a while. As there is no upside to an elected official taking the side of business when it comes to consumer phones. Especially their cell phones, which they consider their personal window to the world (and that goes for business cells now, too).
So if your find yourself indifferent to Do Not Call...
TCPA, CFPB and related challenges and solutions for your business - you're not alone.
David Kaminski, Partner at the law firm of Carlson & Messer LLP, and the 2013-2015 Chair of the Member Attorney Panel (MAP) division of the ACA International, says: “We absolutely understand TCPA legislation can be confusing for our banking, collection, and teleservices clients. We see various interpretations of the law on so many fronts play out every day. We understand how difficult it is for companies to comply with all of the TCPA laws, including the DNC laws. However, while we wait for reform, we recommend companies heed these laws as they have potential serious ramifications, especially when dealing with class action litigation. The better your calling policies, procedures and compliance protocols are, along with proper cell identification, archiving – as well as attention to the method of the call vs type of phone being called - the better your chances of success if faced with litigation under the TCPA."
So take some common sense steps to have at least a defensible position should you end up in a CFPB / TCPA audit – or consumer litigant altercation.