Professional Plaintiffs and the TCPA

The Telephone Consumer Protection Act (TCPA) was enacted in 1991 to protect consumers from unwanted telemarketing calls, robocalls, and text messages. While the law has undoubtedly provided essential safeguards, it has also given rise to a phenomenon known as “professional plaintiffs”—individuals who actively seek out violations of the TCPA to file lawsuits. This blog explores the concept of professional plaintiffs and the TCPA, their role in litigation, and the broader implications for businesses and consumers.

Who Are Professional Plaintiffs?

Professional plaintiffs are individuals who intentionally put themselves in situations where they are likely to receive “unsolicited” communications, often with the goal of identifying TCPA violations. These plaintiffs may:

• Sign up for promotional offers or newsletters to receive marketing communications.
• Maintain multiple phone lines to increase the likelihood of being contacted.
• Use tools to document violations, such as call recording apps or detailed logs.

While some professional plaintiffs may genuinely seek to hold businesses accountable, others exploit the TCPA’s statutory damages to generate significant financial gain.

How Do Professional Plaintiffs Operate?

Professional plaintiffs typically:

• Provoke Contact: They may fill out forms, subscribe to services, or otherwise engage with businesses to trigger communications.
• Document Violations: Once contacted, they meticulously document the details, including the time, date, and nature of the communication.
• File Lawsuits: Armed with evidence, they file lawsuits alleging TCPA violations, often seeking settlements or statutory damages.

The Impact on Businesses

The rise of professional plaintiffs has created challenges for businesses. Some key issues include:

• Increased Litigation Costs: Defending against TCPA lawsuits can be expensive, even if the business ultimately prevails.
• Reputational Damage: TCPA violations, whether intentional or accidental, can harm a company’s reputation.
• Operational Changes: Businesses must invest in compliance measures, such as robust consent management systems, to mitigate risks.

Balancing Consumer Protection and Abuse Prevention

While the TCPA is critical for protecting consumers from unwanted communications, the rise of professional plaintiffs highlights the need for balance. Potential solutions include:

Understand the TCPA

Familiarize yourself with the TCPA’s requirements. Key provisions include:

• Obtaining prior express written consent before making telemarketing calls or sending text messages.
• Providing an opt-out mechanism for recipients.
• Avoiding calls to numbers on the National Do Not Call Registry without an exemption.
• Ensure your team is trained on these rules to prevent inadvertent violations.

Audit Your Contact List

Maintain a clean and compliant contact database by:

• Regularly updating your lists to remove numbers on the Do Not Call Registry without an exemption.
• Verifying consent records for each contact.
• Using reputable vendors for list acquisition and ensuring they follow TCPA compliance standards.

Implement Robust Consent Practices

Documenting consent is one of the most effective ways to protect your business. Use the following best practices:

• Clearly state the terms of consent when collecting contact information.
• Retain records of consent, including timestamps and the method of collection.
• Avoid using pre-checked boxes or vague language when requesting consent.

Leverage Technology

Invest in technology that ensures compliance, such as:

• Call-tracking systems to monitor dialing patterns.
• Software to scrub contact lists against the Do Not Call Registry.
• Tools to automate opt-out processing and maintain opt-out lists.

Monitor Third-Party Vendors

If you use third-party vendors for telemarketing or text campaigns, ensure they comply with TCPA rules. Conduct regular audits, review their policies, and include indemnification clauses in contracts to minimize your liability.

Establish a Complaint Resolution Process

Responding promptly to complaints can help resolve issues before they escalate into lawsuits. Create a clear process for:

• Logging complaints
• Investigating claims
• Offering remedies when appropriate

Stay Informed

TCPA regulations and interpretations evolve over time. Subscribe to industry newsletters, join trade associations, and attend webinars to stay updated on changes that may impact your business.

Adopt a Proactive Compliance Culture

Fostering a culture of compliance within your organization can prevent mistakes that lead to lawsuits. Train employees regularly, encourage them to report potential issues, and reward adherence to compliance protocols.

Conclusion

While the TCPA serves an important role in protecting consumers, professional plaintiffs can exploit its provisions to target businesses. By taking proactive steps to ensure compliance and adopting a robust risk management strategy, you can protect your business from costly litigation and maintain trust with your customers. Remember, prevention is always better than cure—invest in compliance today to safeguard your future.

Staying up to date on developments to federal regulations like the TCPA can be a complex and time-consuming task. CompliancePoint has a team of marketing compliance professionals that can take compliance monitoring off your plate. Reach out to us at connect@compliancepoint.com to learn more about our services.