" IN OTHER WORDS , THE STAKES HERE ARE INCREDIBLY HIGH .
NONCOMPLIANCE IS SIMPLY NOT AN OPTION ."
Per the new rule , callers cannot rely on third-party lead generators to possess consent records , and callers must obtain the full record before making any call to the consumer .
What needs to be possessed by the caller is unclear . Some sort of record that clearly demonstrates one-to-one consent was obtained is needed , however . It is very likely — although courts have not yet confirmed — that a record from ActiveProspect or Jornaya will be sufficient . Other data sets might also be permissible .
But a single line of API data or a mere third-party token is likely not sufficient under the new rules .
" IN OTHER WORDS , THE STAKES HERE ARE INCREDIBLY HIGH .
NONCOMPLIANCE IS SIMPLY NOT AN OPTION ."
WHAT HAPPENS IF I FAIL TO COMPLY WITH THE NEW RULE ?
Any caller using regulated technology for marketing purposes without compliance with the FCC ’ s new one-to-one rule faces massive risks of the following sort :
1 . TCPA class action risk : Minimum of $ 500 per call ; up to $ 1,500 per call . The damages are not limited to the call made to a single consumer and might include every call made by a caller that violates the rule in a single case . Depending on volumes , therefore , these cases may seek hundreds of millions or even billions of dollars in damages . They can be brought by any consumer that received even one violative call most anywhere in the nation . And Plaintiffs ’ lawyers are not just looking for the “ bad guys .” They will sue any company that is out of compliance .
2 . Regulator risk : Although less likely than being sued in a TCPA class action , regulators carry even heavier fines — up to $ 16,000 per violation . While regulators generally only go after the real “ bad guys ,” they come looking to put people out of business . Recent fines from the FCC have been over nine figures , and they often pursue company operators personally .
“ The country ’ s leading TCPA attorney .”
- Evocalize
In other words , the stakes here are incredibly high . Noncompliance is simply not an option .
CAN I LIST MY COMPANY ’ S NAME ON THE FORM AND CALL AND MAKE OFFERS ORALLY ?
No . Under the rules , the “ seller ”— that is , the ultimate good or service provider — must be the name on the form accepted by the consumer .
A lead generator cannot just list their own name on the form , call the consumer , and then make oral offers for third parties .
This is not legal .
It is , however , possible for the lead generator to offer their own services — likely as a broker — to assist the consumer to find services offered by others , but that will require objective rationale in the
ERIC J . TROUTMAN