Don’t Forget About the TCPA and the CAN-SPAM Act When Designing Your Marketing Communications Strategy

Seyfarth attorneys Jordan Vick, Robert Milligan, and Bart Lazar provided a back-to-basics primer on TCPA and CAN-SPAM rules and penalties regarding text, calls, and emails, plus helpful best practices with respect to using third-party vendors and externally sourced marketing lists.

As a conclusion to this webinar, we compiled a summary of takeaways:

  • The TCPA’s cell phone ban is here to stay given the Supreme Court’s decision to sever the problematic government debt exemption, rather than to invalidate the entire statute on First Amendment grounds.
  • Companies hungry for sales that interact with customers and prospective customers for business through text messages and faxes should obtain express written consent and provide appropriate opt out notices.
  • We can expect the Supreme Court to resolve the circuit split and provide definitive guidance on what constitutes an automatic telephone dialing system (aka autodialer) next year, as the Court has granted a petition for certiorari on that issue.
  • Recent FCC orders have emphasized that the key for determining whether mass text messaging platforms are automatic telephone dialing systems is whether human intervention is needed, not the volume of messages sent, which will be helpful for campaigns to interact with potential voters as election season heats up.
  • The FCC has not provided a free pass with respect to health care communications and communications regarding COVID, so those in the health care industry should continue to seek consent whenever possible and, when making COVID-related communications under the emergency purposes exemption, make sure the content is purely informational, not about billing or marketing.
  • It is important that communications with customers and potential customers be sent correctly to the right people to protect the company’s goodwill and comply with applicable law like the TCPA and CAN-SPAM.
  • Make sure that your company understands how it manages and processes personal data, particularly whether and how it obtains consents/opt-ins and how it  processes opt outs.
  • Companies are liable for both money and, in the court of consumer opinion, the actions of its service providers. Make sure they are reliant and compliant

View the recording and download the presentation materials on the Seyfarth website.