Don’t Overlook the TCPA Safe Harbor Defense for “Do-Not-Call” Claims
After the Supreme Court narrowed the definition of an “automatic telephone dialing system” (ATDS) in the 2021 Facebook v. Duguid case, plaintiffs’ attorneys have shifted their approach. They now focus on certifying classes of individuals who claim to have received marketing calls or texts while their numbers were listed on the federal “do-not-call” registry under 47 U.S.C. § 227(c).
The best defense against these claims is to maintain clear evidence that you only contacted consumers who opted in—meaning they provided their “prior express invitation or permission” to receive communications. But even with these safeguards, mistakes can happen. Given the vast volume of calls and texts made daily, such errors can and do happen. So, what else can you do?
The key is to have internal policies and procedures in place, so you qualify for the safe harbor defense under the Telephone Consumer Protection Act (TCPA). A proactive compliance strategy can prevent significant legal headaches down the road, but you must be able to prove it.
Understanding the TCPA Safe Harbor Provision
The TCPA provides a safe harbor for calls or texts made to numbers on the federal “do-not-call” list if they were made by mistake, as long as the caller can show they follow these requirements:
Written Compliance Policies – Keep written policies to ensure you follow federal “do-not-call” rules.
Employee Training – Train your team on proper “do-not-call” procedures.
Internal “Do-Not-Call” List – Maintain an internal list of people who have opted out.
Call Prevention & Documentation – Set up and document processes to prevent calls or texts to numbers on the federal “do-not-call” list.
Proper Use of the List – Use the federal “do-not-call” list only to comply with telemarketing rules and don’t share its cost with others.
Protecting Your Business
Make sure your company has these policies documented. That way, if a class action lawsuit comes your way, you’ve got another strong defense ready to go. If you need help navigating these requirements, reach out and we’ll help you set up a solid TCPA compliance strategy.