TCPA Violations and Penalties

Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters. 

 The TCPA, or Telephone Consumer Protection Act, enforces responsible mobile marketing in the United States. It was enacted by Congress in response to consumer complaints about unwanted, harassing and deceptive phone calls. 

 Its initial scope covered restrictions on the use of pre-recorded messages and auto-dialed calls. However, it has since expanded to include calls and texts to mobile phones. 

 Before you start texting your customers, knowing what constitutes a TCPA violation is crucial. You need to comply with TCPA guidelines to avoid fines and protect consumers from unwanted texts.

In this guide, we’ll cover some items such as: 

Review our SMS Compliance Checklist

What Constitutes a TCPA Violation?

There are three types of TCPA violations:

  1. Calls or texts to those listed on the National Do Not Call Registry
  2. Unsolicited calls to residential or cell phones using automated dialing or pre-recorded messages
  3. Unsolicited texts to cell phones

1. Calls or Texts to Those Listed on the National Do Not Call Registry

First, don’t call or text people who do not want to be contacted. The National Do Not Call Registry is a consumer-generated list of phone numbers that limits the telemarketing calls those consumers receive. It’s managed by the FTC (Federal Trade Commission) and enforced by the FTC, FCC (Federal Communications Commission) and state officials.

If a customer has given you express written consent to text them, you may contact them even if they’re in the National Do Not Call Database.

Do Not Call Exemptions
Per the FTC, you must subscribe to the Do Not Call Registry if you plan to call or text customers. Most non-profit organizations are exempt. A for-profit organization may register as an exempt organization if all the telephone calls or SMS messages it sends fall within one or more specific categories. Exemptions include:

  • Informational messages
  • Surveys or political polls
  • Business-to-business calls
  • Promoting a political party or candidate
  • Solicitations for charitable contributions
  • Calls to consumers who have an existing business relationship with you 

Note: If you are not an exempt organization but have subscribed to the DNC registry as exempt, you may be subject to civil and criminal penalties.

Review DNC Rules for Telemarketers and Sellers

How to Access the Do Not Call Registry
There are two ways your business can access the Do Not Call Registry:

  • Register and create a profile on the FTC website, and then follow the instructions for downloading and decompressing files.
  • Subscribe to a service like Contact Center Compliance. With this service, you can scrub your leads against the Do Not Call Database to eliminate restricted phone numbers before you download them into your SMS system.

2. Unsolicited Calls to Residential or Cell Phones

The FCC strictly prohibits unsolicited calls to residential or cell phones unless you have express written consent or an existing business relationship. An existing business relationship is defined as having done business with a customer within the last eighteen months.

Using automated dialing or pre-recorded messages is also prohibited. It’s not illegal to make sales calls to potential customers if they’re not on the DNC list, but a live person must make the call.

3. Unsolicited Texts to Cell Phones

As with unsolicited calls to residential or cell phones, unsolicited texts are also prohibited by law. Businesses must obtain explicit written consent to add customers to a subscription list and send them marketing or promotional communications. The consent must be in a documented and saved format.

Customers can also check a box if they wish to receive communications from your business. However, this box cannot be pre-checked.

What Are the Penalties of TCPA Violations?

Businesses that violate TCPA laws are subject to harsh penalties. TCPA fines are steep, ranging between $500 and $1500 per individual violation.

A consumer providing sufficient documentation can recover up to:

  • $500 for each violation of the National Do Not Call Registry
  • $500 per phone call that violates the TCPA rules
  • $1,500 per phone call if the consumer can show that the business violated TCPA laws knowingly and willfully

Penalty Exceptions

What happens if your business violates the TCPA? Honest mistakes happen. If your business can show that it meets all the requirements of the FCC’s “safe harbor” rule, it is not subject to civil penalties or sanctions for making unsolicited contacts. To meet the safe harbor requirements, your business must:

  1. Have written procedures to comply with the Do Not Call requirements
  2. Maintain training procedures for all personnel
  3. Monitor and enforce compliance with established procedures
  4. Maintain a separate internal list of telephone numbers that your business may not call
  5. Access the Do Not Call Registry no more than 31 days before calling any consumer, and maintain records documenting this process
  6. Affirm that any call made in violation of the Do Not Call rules was in error

New TCPA Penalty

The Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act became law on December 31, 2019. This legislation expands the authority of the FCC to impose civil penalties of up to $10,000 per call for intentional violations of federal robocall laws.

How to Avoid TCPA Violations

TCPA penalties may seem daunting. But if you follow a few simple rules, you can rest easy knowing that your SMS marketing campaign is legal and compliant.

  1. Obtain prior express written consent from consumers
    Save time and effort by ensuring that consumers have given you their express written consent to contact them first. Learn how to obtain express written consent.
  2. Provide a user-friendly, interactive way to "opt out"
    Don’t fight the law. Sometimes customers will opt-out of your communications, and that’s okay. Make it easy for them – and you – by offering convenient opt-out functionality.
  3. Follow our TCPA best practices for long-term success.

Avoid Costly Legal Mistakes

Violating TCPA laws can sink your business, so consult your legal team so that you can avoid any TCPA violations or fines.

Whether you’re sending 10 or 100,000 SMS messages, Textedly has monthly and annual plans for all your needs, and can support both small and large businesses and organizations.

Disclaimer: Please note that this is not legal advice and is for informational purposes only. It is not intended to substitute for advice from qualified legal counsel, nor is it to assist you or help you be compliant as you assume 100% responsibility in all legal matters.