Telephone Consumer Protection Act demand letters are frequently handled by TCPA attorneys and law firms like Hinch Newman, LLP. TCPA demand letters that allege violations such as the unlawful and unauthorized use of telemarketing dialing technologies, unlawful use of text messages, unsolicited telephone calls or texts, telephone calls to numbers on the national and state Do Not Call lists and unlawful faxes almost always initially demand substantial settlements of $500 to $1,500 per violation in order to avoid the time, expense and stress of telemarketing litigation and class actions.
Who Are TCPA and DNC Demand Letters Usually Received By?
TCPA demand letters are often sent to lead buyers, lead generators and third-party vendors. TCPA and DNC demand letters should be taken seriously. Oftentimes, the author of such correspondence is already working with a TCPA attorney that has, in fact, ghostwritten the TCPA demand letter while both are looking to obtain information relating to the lack of compliance with the Telephone Consumer Protection Act and state telemarketing analogues in order to set you up for formal legal action and monetary penalties, including attorneys’ fees.
Should You Ignore TCPA and DNC Demand Letters?
No.
Ignoring a TCPA demand letter is risky business. Doing so could result in the initiation of a lawsuit, including a class action, and exposure to enhanced federal and state statutory liability exposure and liability for attorneys’ fees and costs. And, if there is a violation of the FTC’s Telemarketing Sale Rule there exists potential exposure to monetary civil penalties, per occurrence.
Pre-suit negotiations can oftentimes be significantly less painful, particularly if there exist less than ideal facts, such as no prior express written consent, telephone numbers on national or state DNC lists, and failure to honor suppression requests. Contact an experienced TCPA lawyer in order to minimize potential TCPA liability exposure, or to assess potential defenses if you have received a TCPA demand letter or have been named as a defendant in a TCPA lawsuit.
What to Do If You Receive a TCPA Demand Letter?
Do not panic. Assess the allegations in the letter with telemarketing counsel. Determine if the claim is valid. Was there lawful consent? Is the telephone number on the Do Not Call list? Is the number residential? Is there any concrete harm? Are there written Do Not Call policies in place? What are potential defenses?
Does the author of the TCPA DNC demand letter have a history of filing lawsuits? What plaintiff firms does the author have a relationship with?
Counsel may advise on how best to respond. The goal is often the avoidance of the addition of other potential defendants while negotiating resolution or disputing the allegations outright without having to turn over documentation and information that may be requested in an effort to enable the potential plaintiff to build a case.
How Can You Avoid Receiving a TCPA Demand Letter?
Various plaintiffs’ law firms are well-known and reputed to send large numbers of TCPA demand letters alleging unlawful telemarketing practices in violation of the TCPA and state analogues. Generally, such letters are often sent directly to recipients by TCPA attorneys or are ghostwritten for individuals by plaintiffs’ telemarketing counsel. According to an FTC CID attorney, such correspondence is typically intended to apply pressure and requests information relating to prior express written consent, the existence of written Do Not Call policies and whether the recipient is interested in negotiating resolution prior to the initiation of formal litigation.
Know TCPA do’s and don’ts.
Because such a large number of these complaint letters have been sent to advertisers and marketers, including lead generators, it is crucial to consult an FTC compliance lawyer prior to engaging in telemarketing (including text message) campaigns to evaluate compliance with applicable telemarketing legal regulations, discuss what the TCPA is and what it regulates, review internal documentation to prove prior express written consent, and assess compliance with the National Do Not Call Registry.
Measures designed the minimize the chances of receiving a TCPA demand letter include, but not limited to, securing lawful consent (substantive language and conspicuous presentation), evaluating the underlying technologies used to make calls, whether calls contain an “advertisement” or constitute “telemarketing,” avoiding calls to telephone numbers on the National Do Not Call Registry unless an exemption exists (transactional EBR, inquiry EBR or written agreement) promptly adding individuals that express a desire not to be called or opt-out of messes to the company internal DNC list, calling curfews, and other applicable federal and state telemarketing legal regulations.
What is Prior Express Written Consent?
“Prior express written consent” to receive marketing telephone calls, including text messages, is nuanced. In general, such consent must identify the specific seller to whom consent if provided, identify the consumer’s telephone number, indicate affirmative assent via a clear call-to-action button that is in close proximity to the disclosures, conspicuously disclose - across all platforms - authorization to engage in advertising and that calls with by made using automated technology, conspicuously disclose that there is no requirement to consent as a condition to purchase, and obtain a written signature from the consumer.
Consult an Experienced TCPA Attorney
The telemarketing landscape is fraught with landmines. Non-compliant telemarketing activities have been a focus of federal and state enforcement for years. The proliferation of TCPA and DNC pre-litigation demand letters from various plaintiffs’ firms are increasing the risk because just a few calls to a single individual can lead to serious monetary exposure given the potential for class action lawsuits. If you have received a TCPA demand letter, prompt evaluation and attention may be required in order to avoid the filing of class action litigation.
Contact experienced telemarketing compliance and defense counsel for strategic response planning if you are dealing with a TCPA demand letter.
