Marketing is absolutely critical in today's day and age. However, it is important to recognize that the sending of any unsolicited text message, e-mail, or other correspondence can subject one to various forms of liability. While many have heard of the CAN-SPAM Act, others may not be as familiar with the Telephone Consumer Protection Act, also known as the TCPA. The TCPA does not have some of the same liability maximums as the CAN-SPAM Act, and therefore could subject any entity who violates its provisions to significant monetary damages. Class Action lawsuits across the country have sought and recovered millions of dollars as a result of the unsolicited sending of text messages, e-mails, phone calls, or faxes. Understanding the rules of the TCPA and how to comply with them can help insulate your company from liability. However, it is also critically important to understand that the rules as promulgated by the Federal Communications Commission, are set to change in October 2013.
In particular, whereas the exception for an established business relationship was often times relied upon to show compliance with the TCPA, the FCC is set to require businesses to obtain unambiguous written consent before making any automated telemarketing phone call or automated text message, e-mail, or fax. This requirement will have far reaching implications in the consumer marketing and advertising industries. Recognizing these pitfalls, entities have often times outsourced the marketing services to a third party. However, in light of the possibility for the vicarious liability under the TCPA, not only do the advertising companies need to be aware of the TCPA's requirements but the businesses utilizing such advertising companies and telemarketers must also. Noone wants to be responsible for $500.00 for each violation of the TCPA, which could balloon to $1500.00 for each willful violation. Therefore, prior to sending any unsolicited text message, e-mail, phone call, fax, or any other correspondence, you would be well served speaking with an internet attorney who understands the TCPA.