In an earlier blog, we explained the two main pillars of the TCPA. To recap, Section 227(b) deals with autodialed, prerecorded, and artificial voice calls to cell phones and residential lines. If you’re going to make any of those calls, you need “prior express consent” of the called party. (And that consent can get very specific if you’re using that type of technology to make telemarketing calls.) Section 227(c) deals with “telephone solicitations” to “residential telephone subscribers” who have placed their numbers on the National Do Not Call Registry.
TCPA Section 227(b)
If you do not make calls with a prerecorded or artificial voice, you’re well on your way in your compliance journey because you’ve taken 227(b) issues off the table. This is especially important because 227(b) is the darling of TCPA plaintiff’s attorneys.
If the plaintiffs’ lawyers can find (or even think or hope they have found) a campaign that runs afoul of Section 227(b), they’ll file a putative class action against the caller. They think they have a clearer path to getting the court to certify that class action because of the typically uniform nature of prerecorded or artificial-voice calls. Avoiding prerecorded and artificial-voice calls also helps your brand and compliance journey, because your live-agent calls are far less likely to be the subject of complaints, and your agents can get real-time feedback from your contacts.
TCPA Section 227(c)
We’ll go more in depth on Section 227(c) — commonly referred to as the DNC rules — in another blog. But as you can probably tell already, 227(c) is a much more nuanced area of the law. It is therefore far harder for TCPA plaintiffs’ attorneys to attack. There are several conditions that must apply before they can successfully prove a 227(c) claim.
First, are your calls even a “telephone solicitation”? (Hint: there are various exceptions, and consent is only one of them.) Second, are they to a “residential telephone subscriber”? Third, are they to the person who added their phone number to the National DNC? And, fourth, have you made more than one call to those people within a 12-month period? Those, among others, are all factual considerations that go into evaluating a 227(c) claim under the TCPA. And the more individualized the analysis of those issues gets, the harder it is for TCPA plaintiffs to convince courts to certify a class. That is why they love 227(b) and shy away from 227(c) classes if they can avoid it.
In short, sticking with live-agent calls can really help you kick-start your compliance journey by helping you spend more time with your agents and contacts, and less time with TCPA lawyers. But, as always, we recommend working with one of our TCPA attorneys for your compliance journey. An ounce of prevention, as they say, is worth a pound of cure.
This article was co-authored with our fantastic, compliance-focused UCaaS client, ReadyMode.com.
Topics
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