As Eleanor Roosevelt famously said, “Learn from the mistakes of others. You can’t live long enough to make them all yourself.”
After 20+ years of practicing law in the telecommunications industry, I’ve seen countless ways that businesses can get themselves into trouble. I’m here to help you avoid the same mistakes by covering five common TCPA violations that your business would be wise to avoid.
1. Not Getting Proper Consent
If you plan on using prerecorded or artificial voices as part of your outreach, make sure you’re ready for the FCC’s new one-to-one consent rule. As of January 27, 2025, consumers must give you—the identified seller—prior express written consent (PEWC) to make those types of sales calls.
Every day, TCPA cases are filed alleging that the caller (or the brand the calls were made on behalf of) did not have the right level of consent to make calls with such technology. And as we learned from the Schwartz v. Hall Insurance Group., Inc case, getting consent may not be as straightforward as you think.
If your calls are made with something other than a live human voice, make sure you have the right level of consent from each contact on your list. Also consider scrubbing against the National Reassigned Numbers Database to ensure you’re calling the actual people you’re trying to reach.
2. Ignoring the National Do Not Call (DNC) Registry
Pro tip: Don’t buy yourself a TCPA lawsuit. When someone offers you a scrubbed list, that should raise a host of questions for you, like: Where were those numbers sourced from? How did they gain consent? How do I know I can trust them?
If the opt-in site didn’t have your business’s name on it, be wary. If they can’t give you clear details about how it was scrubbed, by whom and when, be wary. If you’re going to use that list to make sales calls—unless you get clear, credible, documented answers to those questions—scrub against the DNC list.
Unsure how? Readymode’s integrations with DNC scrubbing tools can make the process easier.
3. Outsourcing Your TCPA Compliance
You don’t trust your kids with strangers, so don’t give your brand—and your bottom line—to poorly supervised BPOs and call centers.
As noted above, a caller must give careful attention to the TCPA’s rules, which vary based on how you’re calling, the purpose of your calls, and even the type of phone number you’re calling. If “Bob’s Solar” outsources their telemarketing to a third-party caller, the plaintiff is going to sue Bob’s Solar first, even if the callers were third-party BPO employees. This happens every day.
So before you outsource your telemarketing to a third party, be sure you’re leaving your brand—and your TCPA exposure—in good, compliant hands.
4. Not Providing Opt-Out Mechanisms and/or Honoring Opt-Outs
As noted above, if you’re making cold sales calls, you have to scrub against the National DNC Registry. But even when you do that, or even if you had consent in the first place, there’s a second layer to DNC compliance: keeping your own, internal DNC list of people who ask you not to make any further sales calls to them.
Not offering a clear and easy way for consumers to opt out of receiving calls from you is a common mistake. And if you engage with your prospects across multiple channels, such as in-store and/or SMS, you’ll want everyone to be on the same page. The FCC now allows consumers to make internal DNC requests via any reasonable means.
To protect your business, train your agents to log all internal DNC requests they receive. Using call compliance tools can also help. And if you use prerecorded or AI voice for your calls, be sure to follow the automated opt-out option and company-disclosure rules. Businesses must ensure that opt-out requests are honored promptly.
5. Misunderstanding the TCPA’s Scope
America has a confusing mix of telemarketing laws. You can pay the federal government to deliver as many ads to strangers’ mailboxes you want. You can fill Americans’ inboxes with sales emails as long as you follow a few simple CAN-SPAM Act rules. But if you’re going to make phone calls, send faxes, or (more controversially) text messages, you must pay careful attention to your TCPA compliance.
The TCPA explicitly applies to phone calls and faxes. Yet even though the TCPA does not mention text messages at all, the FCC has ruled that when Congress wrote “call” in 1991, it also meant text messages—even though text messages were not even commercially exchanged in 1991.
The FCC classifies text messages as a so-called “information service” under its own jurisdictional rules, which has lighter regulations than the broader “common carrier” category that telecommunications services sit under.
This means that when it comes to regulating SMS services in the wireless industry, the FCC has taken a hands-off approach, giving big carriers the authority to self-regulate. But when it comes to your own text messages, those are somehow “calls” according to the TPCA—a decision many courts have reluctantly accepted.
So if you’re calling, faxing, or texting, think carefully about your TCPA compliance goals.
This article is only offered for informational purposes; it is not legal advice. Please consult a qualified attorney for your specific compliance needs.
Joe Bowser
Joe Bowser is a partner at Roth Jackson. He has been practicing communications and marketing law for two decades. He advises and defends calling and SMS platform providers (like Readymode), carriers/VoIP providers, and heavy users of those services in their wide range of compliance needs. In his spare time, you can find him taking his boys to their sports, getting in a workout of his own, or catching an Arsenal match.
