Compliance Guidance and Procedures

Compliance Guidance and Procedures

Telephone Consumer Protection Act

This document provides background for agents regarding the federal Telephone Consumer Protection Act (“TCPA”) and guidance about how to comply with TCPA requirements (agents who contracted with TRB agreed to comply with the TCPA in their respective Independent Contractor Agreements.)  The intent is to provide an overview of the issue and suggested best practices; it is not legal advice, nor is this intended to create obligations or requirement beyond those contained in the Independent Contractor Agreement. 

What is the TCPA?

The TCPA is a federal law that restricts certain telephone, SMS (text), and fax messages without prior express consent (or for advertising or telemarketing messages, prior express written consent) of the recipient.” The TCPA specifically prohibits several categories of calls and texts made without such consent including (1) calls and texts to cell phones using an automatic telephone dialing system (“ATDS”), (2) calls to residential phones or cell phones using artificial or prerecorded voices, and (3) calls, texts, or fax messages to numbers on the National Do Not Call Registry (“NDNCR”) or numbers of individuals who have directly asked you not to call, text, or fax them.  It is important to remember that individuals and entities are subject to strict liability under the TCPA for the calls they make and texts or faxes they send—this means that it is not a defense to the statute that the individual or entity did not know that they should not have made the call, text, or fax. 

Agents can be sued directly and personally for violations of the statute.  A company also may be sued for a TCPA violation for calls or texts made by its employees or others who had actual or apparent authority to act on their behalf.  Lawsuits for TCPA violations are common against companies that make the calls or send the texts.  This can include both the company on whose behalf the call or text is made, as well as potentially any contractor or vendor who made the call or sent the texts.  Many TCPA cases are brought as class actions, significantly increasing the risk exposure because the class could cover all call or text recipients from that company.  The potential monetary risk is large.  A call recipient may seek statutory damages of $500 per call or text that may violate the TCPA and up to $1,500 per call or text where the violation was willful.  As a result, defending the lawsuits can be costly, and many settlements or verdicts are in the millions of dollars. Pursuant to the Independent Contractor Agreement, any agent affiliated with the Company agrees to indemnify, defend, and hold the Company harmless from any costs and damages, legal or otherwise, arising from the agent's failure to comply with the TCPA.

What can an agent do to comply with the TCPA?

To mitigate the risk of agents having direct personal liability under the TCPA, agents must take steps to comply with its requirements.  TRB recommends that each agent maintain a robust TCPA policy to ensure that the agent is complying with the statute and their contractual obligations to TRB. An example of a policy that can be modified for an agent’s use is attached as Exhibit A. 

The following steps can be taken to reduce an agent’s risk:

• Ensure that each phone number added to your customer records and each lead has provided express written consent to be called or to receive texts or faxes.  This includes obtaining written consent at the time the phone number or lead is acquired, understanding what express consent your lead source has obtained, and understanding whether that consent obtained by the lead source covers a call from you.  If it is unclear whether prior express written consent was provided by those on a lead list, the agent should either (1) not contact the leads or (2) only contact the leads after (a) checking against the NDNCR and the individual agent DNC list and (b) first contacting the lead (without using an ATDS or artificial or prerecorded voice) to obtain prior express written consent before using an ATDS or artificial/prerecorded voice in subsequent communications. Please keep in mind that that a call recipient’s consent can be revoked at any time if the recipient informs you in writing or on a call that they do not wish to be contacted. 
• Maintain and update a record-keeping system containing clear documentation of prior express written consent.  Information to be tracked includes date and time of consent, manner of consent, source of the lead, call histories, and whether consent has been revoked at any time.
• Before calling or texting any phone number or lead, ensure that the phone number or lead is not on the NDNCR or, if it is, that you have an existing business relationship or express consent to call or text them.  An existing business relationship is one in which the call recipient has done business with you in the 18 months before you make a call or made an inquiry to you in the three months before you make a call. The NDNCR is retrievable at https://telemarketing.donotcall.gov.  You must create an account to access the registry. 

An important reminder: checking the NDNCR is not a one-time exercise.  The only safe harbor for calling or texting a number on the NDNCR absent an established business relationship or prior express written consent is if you have checked the NDNCR within the past 31 days and did not find the number on the list.  In other words, you should check the NDNCR at least every 31 days to ensure that a number for a lead has not been added to the list.

• Maintain and honor an internal Do-Not-Call list to handle all requests from individual call recipients that you not call or text them—this includes where a recipient revokes existing consent.  Your record-keeping system should be updated with clear written documentation of any DNC request or consent revocation, including date, time, and manner of the request/revocation.  Like the NDNCR, the internal Do-Not-Call list should be checked before calling or texting any phone number or lead.  
• Consider not using phone numbers or leads that are older than 18 months.
• Consider not using any artificial or prerecorded voice in any calls.  If you do use one, do so only with prior express written consent. In addition, certain state laws prohibit the use of ATDS or artificial or prerecorded voice. As a result, if you want to use these, you must confirm that it is allowed by your state’s laws. 
• Consider not using any software that is a random number generator or sequential number generator to identify numbers to call.  If you do use one, make calls to those numbers only with prior express written consent.
• Regularly check call histories to monitor call frequency and timing to prevent excess or improper contact.  No calls should be made before 8 a.m. or after 9 p.m. of the applicable time zone of the recipient.
• Educate yourself about the TCPA.

Exhibit A

[Company] Do Not Call Policy

The following sets forth [Company’s] policy for complying with consumer requests not to be called or texted by [Company], and maintaining a list of such requests.  The purpose of this Do Not Call Policy is to ensure that (a) telephone calls or text messages made by [Company]’s employees, team members, agents and representatives conform to federal and state standards, and (b) [Company] honors consumer requests not to be called or texted.  A copy of this Policy shall be made available to [Company’s] consumers or their representatives immediately upon request.

1. [Company] Do Not Call List

In making outbound telephone calls or texts, [Company] maintains, follows and updates its own internal do-not-call list (“[Company] Do Not Call List”).  This Do Not Call List includes those consumers who have directly communicated their desire not be called or texted by the Company.  

Consumers who do not want to receive calls or texts from [Company], may ask us to place their telephone number on the [Company] Do Not Call List by:

• Sending a written request to [Insert Address]
• E-mailing [Company] at [Insert Contact Email]
• Calling [Company] at: [Insert Contact Number]
• Other reasonable means.

All such do-not-call or text requests must include the telephone number(s) at which the consumer no longer wishes to receive calls or text messages from [Company].

The Company’s policy is to record each do-not-call or text request, regardless of the form in which it is made, at the time it is made and to place the consumer’s telephone number(s) on the [Company] Do Not Call List within a reasonable time after the request.  The phone numbers listed in the [Company] Do Not Call List are excluded from future call or texts by the Company, unless a consumer later provides us permission or consent to call or text that number or the call or text is otherwise permitted by applicable law.  

The Company’s policy is to maintain a record of all do-not-call or text requests.  The Company also refrains from selling or sharing the [Company] Do Not Call List (except for call suppression purposes) without the consumer’s consent.

2. National Do Not Call Registry

[Company] subscribes to the National Do Not Call Registry in an effort to prevent unsolicited telephone calls or texts to any telephone number properly listed on the Registry.  This list is updated and maintained in accordance with the requirements of applicable federal law (e.g., such as receiving and implementing updates at least once every thirty (30) days).  Records documenting this process are maintained by the Company in the regular course of its business. The Company also does not sell, rent, lease, purchase or use the National Do Not Call Registry except for compliance with the National Do Not Call rules.

The Company’s policy is not to conduct telephone solicitations to telephone numbers properly registered on the National Do Not Call Registry unless (i) the Company has an “established business relationship” with the consumer, as defined in the relevant statutes and as otherwise permitted by the FTC, FCC or a state regulator; or (ii) the consumer has expressly invited or permitted the Company to contact them by telephone.  If a consumer with an established business relationship with the Company communicates directly to the Company his/her desire to be placed on the [Company] Do Not Call List, the Company’s policy is to place the consumer on the List and the consumer will not receive future telephone solicitations from the Company.  

3. Training

All [Company] personnel engaged in any aspect of telephone solicitation are informed of and trained in the existence and use of both the [Company] Do Not Call List and the National Do Not Call Registry, and the Company’s policies and procedures with respect to do-not-call or text requests.