Blast Marketing Can Be a Costly Mistake to Make
If you have a business, there are a number of unexpected pitfalls that you can fall into when doing what would otherwise seem like harmless activities. One of those activities is basic marketing. It may seem like when it comes to marketing and promoting your business, that anything goes. But in fact, some kinds of marketing activities can result in you and your business being defendants in very expensive lawsuits.
What is the TCPA?
Business owners should be aware of the Telephone Consumer Protection Act (TCPA). The TCPA was enacted to protect consumers from invasions of their privacy through unwanted faxes, calls, or text messages. The act also was intended to protect consumers from the costs involved in unwanted marketing—every time a marketing call, text or fax comes in, the consumer spends money on minutes, data, or fax materials.
Very broadly, the TCPA prevents you from calling, texting or faxing any consumers that you don’t already have an established business relationship (EBR) with. An EBR can be shown through contact with consumers who have hired you or purchased something from you, but can also be established through informal contact, such as someone signing up for a mailing list, or filling out an initial application giving permission to use their contact information.
Further, several states have enacted their own versions of the TCPA. While these state laws vary in their scope, businesses have to be aware of these laws in addition to the federal TCPA.
As you can imagine, to avoid liability, it’s important that you keep and maintain records of those that you have an EBR with. Did someone put their name on your mailing list? Keep the list. Do you have a roster list of people in your marketing or networking group? Keep that list. Did someone email you through a form or portal on your website? Keep that information.
How to Run Into Trouble
It’s easier than you think to run into trouble with the TCPA. Most businesses will hire outside contractors to do marketing for them. Unfortunately, you’re responsible for the actions of the outside companies. Many won’t tell you they’re doing blast texts or mass telemarketing to generate business for you. But if they are, and they violate the TCPA, blaming them won’t be a good defense. Further, there is a growing number of plaintiff’s attorneys who specialize in TCPA lawsuits.
Mistake isn’t a defense either, although a genuine accident, such as accidentally dialing/texting/faxing a wrong number you didn’t know was incorrect, would likely be a defense.
The TCPA can be a costly law to violate. It allows between $500-$1,500 per violation. That means per call, text, or fax. If you contact a consumer 5 times, that’s a penalty of between $2,500-$7,500. The consumer doesn’t need to show actual damages, emotional distress, or financial injury; the penalty is statutory and given upon proof of the call or contact. There is no “one bite” rule, or requirement of notice to you—the moment you violate the TCPA, you’re liable, even if it’s just a single contact (assuming again there’s no EBR or other valid defense). Even worse, TCPA violations may lead to a class action lawsuit against the violating business. In that unfortunate event, the violating business can be hit with a judgment in the many thousands of dollars, or over one million dollars. For example, Interline Brands, Inc., a Jacksonville, Florida based company, settled a TCPA class action lawsuit in 2014 for approximately $40 million!
Make sure your business doesn’t run into liability it doesn’t anticipate. Contact Tampa business attorney David Toback to discuss your needs and review documents to make sure your business is operating safely and in compliance with state and federal laws.