Last month, in WV federal court, Diana Mey filed a proposed class action against Levin Papantonio, MCM, and Principle Law Firm. The suit alleges violations of the TCPA Act related to the Camp Lejeune Litigation. According to the complaint, Plaintiff Mey was on the federal Do Not Call list but was contacted by representatives from MCM.
Some TCPA plaintiffs claim advocacy as the impetus of their cases. In 1997, Mey was named to People’s list of Most Intriguing People of the Year due to her efforts to regulate telemarketing practices. Since then, she has been involved in numerous litigations alleging TCPA violations against different companies.
For others, their “advocacy” might more closely resemble a fishing expedition. In one situation, over a two-year period, a party contacted us 120 times, submitting 3 different telephone numbers across 13 IP addresses. When this party alleged a TCPA violation and requested $3,000, due to our tracking and consent process, we were able to address and dismiss it swiftly.
Regardless of the consumer’s intention, it’s important to understand the TCPA, know your partners, and ensure safeguards are in place to prevent becoming a defendant in a TCPA action. Here are a few tips on how to do it.
Understanding the TCPA is the first step to not violating it. The three elements of a TCPA claim are: (1) Defendant called a telephone number, (2) using an “automatic telephone dialing” system or an artificial or prerecorded voice message, (3) without the recipient’s consent.
Besides these basic elements, there are additional regulations to be aware of:
Now that you know the law, you can have a competent and informed conversation with your potential marketer. Ask the right questions to ensure they don’t engage in practices such as cold-calling or robo-dialing. For example, “How are the calls being made?” or “What’s the process for contacting a consumer?”
Inquire about how they track and record consumers’ consent to contact. For example, “how do you log consumer consent to calls?” or “how are consumer preferences maintained to ensure they are accessible across the company?”
Request information about how they keep their database current. For example, “what steps are taken to ensure TCPA compliance in follow-up campaigns?”
Once you've learned about the regulations and screened your marketer to ensure their work is done with integrity, it's time to turn your attention to recordkeeping.
You must ensure that there is a clear digital (or otherwise) record of how contact occurred. Your marketing firm should be able to tell you exactly where each lead is coming from and the methods used to contact that person.
For example, did someone come to your landing page and opt-in to being contacted? Or did someone call your office? Utilizing software or providers who track this information will ensure your firm is in compliance with the TCPA.
Ask yourself the following questions and ensure you are checking all the boxes:
No one wants to be responsible for violating the TCPA; we all hate those calls! No one wants to fall victim to serial TCPA filers either.
With the proper knowledge and understanding of the TCPA, plus a robust screening process of marketing partners and, finally, a transparent marketer, you can feel confident that your outreach is TCPA compliant to assist with access to justice.