- November 8, 2017
Dos and Don'ts regarding the Telephone Consumer Protection Act
We all now have a million ways to contact current and potential customers. While this can be incredibly beneficial and help expand our business opportunities, it can also become a nuisance for the recipient inundated by telephone calls, automated recordings, faxes, emails, text messages, social media communications, and of course regular mail. You may find yourself in a situation where someone requests you to “cease and desist” all communications. You may be asking, what does that mean? Do we have to immediately “cease and desist”? What if we still need to contact an existing customer for business purposes? It is important to be mindful of the legal limitations on your ability to contact current and potential customers and your options if someone tells you to stop contacting him or her.
As a starting point, most businesses are familiar with the Telephone Consumer Protection Act (the “TCPA”), the federal statute that regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages, and unsolicited faxes. See 47 U.S.C. § 22 et seq. The rules concerning calls can differ depending on whether you are calling a cell phone or a landline and whether the purpose of the call is telemarketing or some other reason. However, in general, someone must provide prior express consent to receive automated calls, pre-recorded messages, text messages, and faxes. Consent can be revoked at any time. Violations of the TCPA start at $500 per violation, and can go up to $1,500 per telephone call or fax for knowing and intentional violations. The law and guidance on this is constantly evolving, and the safest route under the current law is to obtain prior express written consent before placing a call where any part of the process is automated or faxing.
Obviously, if someone requests you to “cease and desist” contacting him or her, you should not autodial them or send a fax or you may be in violation of the TCPA. But can you manually call someone who has requested you to “cease and desist” from contacting him or her? The TCPA is not intended to prohibit or punish businesses from making all telephone calls, only automated ones. However, other statutes and common law torts may apply to calls made after you receive a request to “cease and desist” communications.
Specifically, the Fair Debt Collection Practices Act (the “FDCPA”) prohibits “abusive and deceptive” conduct when attempting to collect debts. See 15 U.S.C.§ 1692 et seq. You could be liable under the FDCPA for communicating with a consumer in any way (including in writing) while attempting to collect a debt after receiving written notice the customer wishes no further communication or informs you he or she refuses to pay the alleged debt. The FDCPA also prohibits calls before 8:00 a.m. or after 9:00 p.m. and requires the caller to provide his or her name, the name of the business entity on whose behalf the call is being made, and a telephone number or address at which the person or entity can be reached.
Additionally, the Dodd-Frank Act prohibits unfair, deceptive, or abusive acts or practices (UDAAPs) while collecting consumer debts. (See Consumer Financial Protection Bureau’s July 10, 2013 Bulletin, available at http://files.consumerfinance.gov/f/201307_cfpb_bulletin_unfair-deceptive-abusive-practices.pdf). The CFPB’s UDAAPs include general prohibitions on harassing, deceptive, misleading, and abusive communications with a consumer while attempting to collect a debt. While the FDCPA generally only applies to third-party debt collectors, the CFPB’s UDAAPs go further and apply to original creditors and service providers.
Can you call, email, or send a letter to a customer who has requested you to “cease and desist” all communications if the communications do not relate to debt collection? While the TCPA or debt collection laws may not apply, you still need to be mindful of common law liability, i.e., torts such as invasion of privacy, or negligent or intentional infliction of emotional distress. There is no bright line for what would create liability, or what is harassing or unreasonable, and this would vary by the facts of the situation, as well as the relevant state law.
Considering these various rules and their interplay as well as the variances in state law, best practices should include:
Maintaining appropriate policies and employee education concerning these various laws and their prohibitions;
Documenting prior written express consent before automated calls, messages, texts, or faxes;
Stopping all debt collection communications if a customer provides a written “cease and desist”;
Closely monitoring communications with a customer who provides a written “cease and desist” request to ensure they do not violate state law and are not harassing or invasive, and keeping careful records that show the frequency and purpose of each such call; and
Consulting with counsel if you are unsure of what you can and cannot do.
For more information on the TCPA, please contact Shana Shifrin at 312/840-7124 or firstname.lastname@example.org.