By Paul Gipson, Director of Marketing Compliance, CompliancePoint
Calling and texting has become an efficient and effective way to reach and qualify interested consumers. In most cases, the FCC’s Telephone Consumer Protection Act (TCPA) requires companies to obtain prior express written consent from consumers before calling or texting with an automatic dialing system. With approximately 55% of households opting to be cellphone-only and the average cost of a TCPA class action at $6.6 million, TCPA compliance should be a major consideration for solar companies seeking to expand their reach by calling consumers’ cellphones.
These statistics highlight the importance of complying with the TCPA when calling or texting cellphones and/or sending prerecorded messages to cellphones or landlines:
- The average cost of a TCPA Class Action is $6.6 million
- There has been a tenfold growth in TCPA complaints filed over the past decade
- There were 1,911 TCPA complaints filed between January 1, 2020 and May 31, 2020
- There were 206 TCPA lawsuits filed in May 2020 alone with nearly half (92) filed as class actions
Solar companies are not immune from being targeted by litigious consumers and law firms for non-compliance with the TCPA. The following companies recently settled TCPA class actions for calls made by, or on behalf of, their company with an automatic dialing system:
While the definition of an automatic dialing system may differ from jurisdiction to jurisdiction, what constitutes express written consent is firmly established. For express written consent to be valid, the disclosure (over the phone or on a form) should include:
- The company name;
- The person may be called with an automated system;
- Which phone number will be called/texted (i.e. at the number above);
- The fact that consent is not required to purchase;
- The consumer must make an affirmative act to signal their consent (i.e. check a box or click a button); and
- The disclosure must be clear and conspicuous.
In addition to obtaining consent, here are the top compliance considerations to help your solar company avoid a TCPA lawsuit:
Honor do-not-call and opt-out requests. Train consumer-facing personnel on how to capture and log do-not-call requests. Additionally, when texting, provide instructions on how to opt-out and look for other common phrases like “stop/quit/cancel.” Opt-outs should occur immediately with most common texting platforms. Additionally, the FCC has commented that calls and texts (and prerecorded messages) are one in the same, so an opt-out of one should always apply to future calls and texts alike.
Keep records. Maintain all records that demonstrate compliance with the TCPA. This includes call or text logs that capture date/time, express written consent received from consumers, and opt-out or do-not-call request logs.
Only call or text consumers between the hours of 8 a.m. and 9 p.m. according to the consumer’s location. It is better to base a consumer’s location on their address and not phone number due to cellphone mobility. For instance, if you call numbers with a California area codes at 8 p.m. PT, but the consumers live in New York, the consumers may complain about receiving calls at 11 p.m. ET (their local time).
Monitor compliance with these items. This is another one that may seem obvious, yet most companies fail to do so. It is a virtual guarantee that a company will find issues with most audits. Companies typically “don’t know what they don’t know.”
Bonus: Here is a more comprehensive checklist on how to achieve a safe-harbor defense.
The TCPA has been around for more than 25 years but remains one of the most litigated consumer protection statutes. A quick Google search should shed light on the fact that the solar industry is in the TCPA crosshairs. However, with proper compliance in place companies can enjoy the benefits of contacting consumers with peace of mind.
Paul Gipson is Director of Marketing Compliance for CompliancePoint. Paul is focused on U.S. and international direct marketing compliance regulations. He works with clients in a variety of industries and is dedicated to providing reliable and practical consulting services. He also is a board member of the PACE association. Paul has a Master’s Degree in Business from the University of Georgia (Go Dawgs!) and has certifications in privacy, six sigma, data and marketing. He may be reached at email@example.com.