Banks may also be at risk for calls
and texts initiated by third-party telemarketers, which makes it all the more
important to ensure any telemarketing
operations are in full compliance with
Amendments implemented within
the last few years added complexities to
the TCPA, but the basic requirement is
this: a bank or third-party telemarketer
must obtain prior express written consent
either ( 1) before placing any telemarketing call to a wireless number using
an automatic telephone dialing system
(ATDS); or ( 2) delivering any prerecorded telemarketing message to either a
wireless or residential landline number.
What is a Telemarketing Call?
The TCPA defines a telemarketing call
What is an ATDS?
as “the initiation of a telephone call or
message for the purpose of encouraging
the purchase or rental of, or investment
in, property, goods or services, which is
transmitted to any person.” Note there
is no “primary purpose” requirement
here; any message containing an adver-
tising message could be considered a
telemarketing call, even if the primary
purpose of the call is transactional.
The TCPA defines an automated telephone dialing system as “equipment
which has the capacity to store or produce telephone numbers to be called,
using a random or sequential number
generator; and to dial such numbers.”
These are also known as autodialers.
Prior Express Written Consent
For these types of calls, what must be
obtained? To constitute “prior express
written consent,” there must be a written agreement, entered into before any
telemarketing calls or texts are placed,
between the telemarketer and the
called party that:
m;Contains a clear and conspicuous
disclosure that authorizes the com-
pany to initiate telemarketing calls
and/or texts using an ATDS or an
artificial or prerecorded voice.
m;Specifically states the consumer is
not required to sign the agreement
in order to receive goods or services.
m;Identifies the specific number the
company is authorized to call.
m;Is signed by the recipient (e-signa-
tures are acceptable here).
These agreements should be
company-specific, meaning affiliates, partners, or other third parties
making telemarketing calls on behalf
of the bank should obtain their own
Note that this consent must be
written, not verbal (which was allowed prior to October 2013), and
“express,” meaning obvious. If a consumer merely provided the bank his
or her telephone number on an online
form or within the context of a business transaction (also allowed previously), it is not sufficient.
Also note that any form of consent
allowed under previous rules is not
“grandfathered.” There is also no longer any sort of “established business
relationship” exemption for prerecorded telemarketing calls to landlines. In each case, new prior express
written consent must be obtained. n
ABOUT THE AUTHOR
CARL G. PRY, CRCM is
ALOOK AT RECENT NEWS REVEALS some pretty high penalty numbers for violations of the Telephone Con- sumer Protection Act (or TCPA), the federal law that regulates telemarketing. One reason for these high
a managing director for
Treliant Risk Advisors in
Washington, D.C., where
he advises clients on a
wide variety of compliance, fair lend-
ing, corporate treasury, and
risk management issues. Email:
numbers is the TCPA contains onerous penalty provisions: $500
to $1,500 for each individual noncompliant robocall or text mes-
sage (with no damages cap), a private right of action (meaning
consumers can sue) and class action claims.
Ensure that Telemarketing
Operations Are in Compliance
within the last few years added
complexities to the Telephone
Consumer Protection Act (TCPA).