When calling or texting using Numinar’s platform, you must comply with the federal Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule (TSR), and state telemarketing laws, as applicable to your campaigns. Violations of these laws can result in expensive litigation, government investigations, and monetary exposure. Your business is responsible for ensuring you are complying with your legal obligations.

The following is for educational purposes only, and is not meant to be legal advice. You should consult with your attorney if you have specific questions about your company’s compliance with these laws.

The TCPA is a federal law that regulates marketing and informational calls and texts made using artificial or prerecorded voice messages, or when placing calls or texts to a cell phone with an automatic telephone dialing systems (ATDS). This includes using technology platforms to send political campaign calls or texts. If engaging in such campaigns, the sender must have records demonstrating clear consent from the subscriber.

The TSR establishes requirements for, among other things, the National Do Not Call (DNC) Registry. The TSR generally prohibits making or sending marketing calls or texts to recipients who have registered their numbers with the National DNC Registry, unless the caller has separately received consent, is calling on behalf of a political organization, or has an established business relationship with the recipient. While political campaign calls and texts are exempt from the TSR’s DNC requirements, the sender must adhere to such requirements if making calls or texts outside of campaigning and if no other exemption applies.

A recent Supreme Court case concluded that an ATDS is equipment that (1) uses a random or sequential number generator to either (a) store phone numbers to be called or (b) produce numbers to be called; and (2) dials those numbers. The law is still being debated in pending lawsuits, and there is no guarantee as to whether a particular platform would be considered an ATDS or not.

The TCPA requires prior express written consent when making marketing calls or texts using an artificial or prerecorded message or an ATDS. Prior express written consent requires: (1) a signed, written agreement; (2) a disclosure that the recipient consents to receive autodialed marketing calls from you at the phone number the recipient provided; and (3) a disclosure that consent is not a condition of purchase. The writing does not need to be on physical paper, but can also be electronic or oral. When making a telemarketing call using an artificial or prerecorded voice or an ATDS to a recipient’s mobile phone, you must obtain prior express written consent from the recipient to make such a telemarketing call or text message to the recipient.

The TCPA requires prior express consent when making informational calls or texts using an artificial or prerecorded message or an ATDS. Generally, prior express consent is implied if a recipient knowingly provides his or her phone number in the normal course of business, so long as the messages closely relate to the purpose for which the recipient provided his or her number. However, you would still need to be able to demonstrate you have a record of the consent if challenged.

The types of consent records you maintain depend on how you collect consent. If collecting consent via webform, you should maintain records of the language used to collect consent, IP address, representative screenshots of the website and website URL, the recipient’s IP address, and any other information that will help you identify when the recipient provided consent. There are a number of third-party solutions on the market that collect such information as well.

If collecting consent orally, you should maintain a record of the call during which the recipient provided consent. Some states require obtaining consent prior to recording a phone call, so you may need to inform the recipient that the call is being recorded before continuing with a call on a recorded line.

A recipient can revoke consent in any reasonable manner, even if different than the method they used to provide consent. Upon receiving an opt-out request, you should immediately honor the opt out and cease sending the recipient automated or prerecorded informational or marketing messages. You must track and record the revocation of consent on your system. If a recipient opts out, you won’t be able to contact that recipient again using the method from which the recipient unsubscribed unless the recipient provides consent again.

You should retain records or prior express written consent, prior express consent, and any other records that indicate TCPA compliance, for a minimum of 5 years from the last date the consent is relied upon to make a call.

Federal and state calling/texting laws impose specific requirements about when you can contact a recipient via telephone, including via SMS. These requirements vary depending on the type of call you are making or text you are sending, and the type of technology you are using to make the call. States may also maintain other laws that have requirements in addition to the federal law requirements listed in these FAQs.

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