How the Telephone Consumer Protection Act Impacts Internet Lead Generation

Last October, the FCC enacted its latest set of restrictions under the Telephone Consumer Protection Act (TCPA). These changes drastically affect online lead generation, specifically mandating that prior express consent be obtained, and eliminating the established business relationship for pre-recorded telemarketing calls. While these restrictions seem very specific to telephone communication, they directly impact Internet lead generation. In order to fully understand how this impacts the way consumers consent to be contacted by commercial communication, it is important to discuss the TCPA from a broad perspective. A Background to TCPA First passed in 1991, the TCPA restricts telephone solicitations and the use of automated telephone equipment, like autodialers and pre-recorded phone communications. Initial TCPA regulations most significantly impacted commercial solicitation to residences. The Direct Marketing Association (DMA), summarized the restrictions to:

• Limit the calls to the period between 8 A.M. and 9 P.M.
• Maintain a "do not call list" and honor any request to not be called again. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. One error is allowed in a twelve month period. Subsequently, the soliciting companies are subject to penalties. A person's name must be kept on the "do not call list" indefinitely.
• Have a clearly written policy, available to anyone upon request.
• Have a clearly defined training program for their personnel making the telephone solicitations.
• If you are a service bureau, forward all requests to be removed from a list to the company on whose behalf you are calling. It’s that company that is legally liable under the TCPA, not the service bureau. The "do not call" request must also be honored by any affiliate or subsidiary of the company if there is a reasonable expectation on the part of the consumer that there request would apply also to the affiliate or subsidiary.

From the same report, a call is exempt from the TCPA if it:

• Is made on behalf of a tax-exempt nonprofit organization
• Is not made for a commercial purpose
• Does not include an unsolicited advertisement, even if it is made for a commercial purpose
• Is made to a consumer with whom the calling company has an established business relationship. This relationship cannot be established merely by having made a prior solicitation call. The customer ends this exemption when he or her requests that no more calls be made.

Additional restrictions were established. These guidelines were heightened in October. TCPA Changes in October 2013 On October 16, 2013, the FCC regulations extended to include the requirement that prior express written consent would be required for certain types of commercial phone calls and SMS messages. Specifically, prior express written consent is needed to autodial or send pre-recorded messages to cell phones. Additionally, the FCC eliminated the ‘established business relationship’ exemption for pre-recorded calls, requiring that businesses gain consent before sending pre-recorded messages to consumers. The regulations put the burden of proof on the marketer or caller. So, how does this affect Internet lead generation? Let me tell you. TCPA Guidelines and Internet Lead Generation Looking to a whitepaper developed by Klein Moynihan Turco LLP and ActiveProspect, “obtaining consent is the key to compliance.” That means, that in order to avoid possible lawsuits, it is essential that all leads are compliant. “When marketers buy Internet leads, they expect that those leads have requested to be contacted and provided consent, but this is not always the case. Independently verifying and storing that consent is not only good business, it is also the simplest way to shield yourself from potential liability.” Compliance and Lead Generation The simplest way to ensure that you are compliant is to use a proof of consent system with all of your lead source landing pages. ActiveProspect was the first to introduce a system: TrustedForm lead certification. This software captures and stores evidence that consent was properly attained for every Internet lead. It’s a simple solution to guarantee your business is protected. While the burden of proof is ultimately on the marketer or caller, insisting that any lead generation done by your business meets the necessary requirements is a good faith act. It also eliminates the possibility that your business be named in a lawsuit should a consumer be unlawfully contacted. For a more in depth look at the ramifications of not being compliant, we suggest you review the whitepaper.