By Emily Faracca – On
Consent is at the crux of TCPA regulation. Here's more proof.
The most recent reform of TCPA consent regulations were as follows:
- Identify each specific company to whom consent is being provided
- Identify the consumer’s phone number
- Indicate a clear and affirmative agreement (i.e., I agree/ consent)
- Disclose that the consumer is authorizing the seller to engage in telemarketing (i.e., to receive offers related to the seller’s products or services)
- Disclose that the calls will be made using automated technology
- Disclose that the consumer is not required to provide consent as a condition of purchasing products or services
- Obtain the consumer’s signature (either electronically through E-SIGN or handwritten)
When all of these are fulfilled, a party has the right to contact an individual's cellphone without fear of TCPA retort.
But since these regulations were declared, there have been many cases that present special circumstance. Wilkes v. Caresource is one. Here's what happened, as told by TCPAland:
The plaintiffs, a husband and wife, applied for a healthcare plan under the Affordable Care Act. They provided the wife's cellphone number as a form of contact on healthcare.gov. Incuded on the website was a disclosure agreement: the applicant's information could be shared with insurance companies.
Eventually, the cellphone number made it's way into the hands of Caresource, a health insurance provider. The couple was covered under Caresource, adding a child to the plan during the first year. As mandated by the Affordable Care Act, the policy was automatically renewed.
During the second year of coverage, the wife called Caresource to cancel their coverage. She was instructed to cancel the insurance in the same place she had applied - healthcare.gov. She did so. Following her cancellation, 5 automated "welcome calls" were placed to her cellphone accidentally. The wife reached out to investigate the calls, and agreed to be placed on Caresource's DNC list. This is where it got tricky. While the wife alleges 5 more calls were placed following the agreement in violation of the TCPA, no further calls were made by Caresource.
It was a short and sweet summary judgment. The court found that the termination of Plaintiffs’ insurance through the Marketplace on February 12, 2016, “was not sufficient to revoke consent to be called under the TCPA.” As a result, the calls were not covered under the TCPA.
What It Means For You
TCPA consent regulations are one of the easiest ways for an agency to stay compliant. We try to continually provide examples of what to do and what not to do so that your validation notices are the least of your worries. After consent is taken care of, keep in mind our TCPA compliant manual dialing solution can take it from there.