TCPA Compliance / Telemarketer Defense

The (TCPA) creates a significant compliance burden for telemarketers, and non-compliance can lead to steep penalties. We represent telemarketers nationwide with regard to TCPA compliance and defense.

Attorney Nick Oberheiden
TCPA Compliance Team Lead

The Telephone Consumer Protection Act (TCPA) is a federal law that Congress enacted in order to protect consumers against aggressive telemarketing practices. It establishes several specific requirements and prohibitions, and it imposes significant penalties for non-compliance. Crucially, the TCPA does not apply exclusively to telemarketing companies—although telemarketing companies are among the most likely to face scrutiny from the Federal Communications Commission (FCC). It applies to all companies and individuals located in the U.S. and abroad, and it includes provisions for both civil and criminal enforcement.

Due to the breadth and complexity of the TCPA, it is important for all companies that utilize telemarketing in any capacity to develop and maintain effective compliance programs. The FCC expects companies that engage in telemarketing to have TCPA compliance programs, and it views lack of a compliance program as a major red flag. With that said, simply having a TCPA compliance program is not enough. Companies must adopt custom-tailored compliance programs that address their unique needs and risks, and they must take adequate steps to ensure compliance on an ongoing basis.

Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Federal Compliance and Defense Counsel for TCPA Matters

At Oberheiden P.C., we serve as federal compliance and defense counsel for all types of companies that are subject to the TCPA. We work with our clients to develop effective TCPA compliance programs, assist them with training and implementation, evaluate the effectiveness of their TCPA compliance efforts, and represent them in matters involving the FCC and other federal agencies as necessary.

For many of our clients, we provide TCPA compliance advice and representation as part of our broader corporate compliance services. Companies that are subject to the TCPA will usually be subject to other federal statutes as well, and maintaining a comprehensive compliance program is essential for avoiding unwanted scrutiny, costly investigations, and unnecessary penalties. By working with our clients to understand and address their compliance needs on an ongoing basis, not only are we able to help them maintain compliance, but we are able to provide efficient and strategic defense representation for federal compliance investigations as well.

Understanding What it Takes to Establish (and Maintain) TCPA Compliance

There are numerous aspects to TCPA compliance. Since the statute applies to, “any person [conducting telemarketing] within the United States, or any person outside the United States if the recipient is within the United States,” all companies that utilize telemarketing need to comply—even if their telemarketing operations are relatively minor in comparison to their overall business operations or the operations of large telemarketing companies.

In order to comply with the TCPA, companies must refrain from engaging in several types of prohibited practices. Some examples of these prohibited practices include:

Calling anyone listed on the National Do Not Call Registry
Calling a private residence before 8:00am or after 9:00pm local time
Making artificial voice calls or delivering recorded messages (i.e. robocalling) to a private residence without the resident’s consent
Using auto-dialers, recordings, or artificial voices to make calls to mobile phones
Using auto-dialers, recordings, or artificial voices to make calls to recipients who pay for the call
Making automated calls to emergency telephone lines
Making automated calls to hospital patient rooms or guest rooms
Making automated calls to other health care facilities, nursing homes, or similar establishments
Knowingly transmitting misleading or inaccurate information with the intent to defraud, cause harm, or wrongfully obtain anything of value

For purposes of TCPA compliance, text messages are considered equivalent to phone calls. Thus, sending marketing texts that violate any of the above prohibitions with respect to phone calls can also lead to enforcement action under the statute. Additionally, while these are some of the primary prohibitions under the TCPA, this list is not exhaustive, and companies must take appropriate measures to ensure ongoing compliance with all relevant provisions of the law.

A key exception to the TCPA’s prohibitions is the exception for “prior express written consent,” or “PEWC.” If a consumer has given PEWC for a telemarketing communication, then many of the TCPA’s prohibitions do not apply. However, there are strict requirements for what constitutes prior express written consent, and companies must carefully document all PEWCs they receive from consumers. Companies must adopt and adhere to appropriate procedures for PEWC withdrawals as well, and they must have documentation on hand to demonstrate compliance when questioned by the FCC.

Defense Counsel for FCC (and Other Agency) Investigations Under the TCPA

Violations of the TCPA can have severe consequences. When uncovered by the FCC, U.S. Federal Trade Commission (FTC), or another federal agency during an investigation, violations carry civil fines in most cases, but federal authorities can seek criminal fines in certain circumstances.

The standard civil penalty for a TCPA violation is $500. This fine is imposed on a per-violation basis. Thus, if a telemarketer makes 2,000 illegal calls, it can face a total of $500,000 in fines. Under amendments to the TCPA enacted in 2019, companies can face forfeiture penalties as well, and these forfeiture penalties can add up to more than $1 million for each violation that is classified as a “single act or failure to act.”

For knowing and willful violations of the TCPA, the standard fine of $500 per violation can increase to $1,500. Additionally, in many cases, violations of the TCPA will amount to violations of other federal laws as well. Federal judges can also award treble damages to affected consumers when warranted. As a result, it is not uncommon for millions of dollars to be at stake in TCPA investigations and related class action or multi-district civil lawsuits.

Given these risks, it is imperative for companies facing investigations under the TCPA to promptly engage experienced federal defense counsel. At Oberheiden P.C., we have a proven track record of successfully defending companies in a broad range of federal civil and criminal matters. Our senior lawyers have deep experience in matters involving the FCC, FTC, and other agencies, and they rely on this experience to efficiently target favorable outcomes for our clients. As defense counsel for TCPA investigations and litigation, we provide services including:

Confidential, attorney-client privileged analysis of the company’s TCPA compliance efforts
Development and execution of a tailored defense strategy during the investigative process
Direct communication with federal authorities involved in the company’s TCPA investigation
Efforts to steer the investigation toward a favorable pre-charge resolution
Representation as necessary at all stages of federal TCPA litigation

FAQs: TCPA Compliance for Telemarketing Companies and Other Businesses

How Important is TCPA Compliance?

TCPA compliance is extremely important. This is true not only for telemarketing companies, but for all companies that conduct marketing calls and/or send marketing text messages. Federal authorities including the FCC and FTC have been paying close attention to TCPA compliance in recent years, and plaintiffs’ lawyers are aggressively targeting companies that violate the TCPA in private-right-of-action cases.

What Should I Do if My Company is Not TCPA-Compliant?

If your company is not TCPA compliant (or if you don’t know whether your company is TCPA-compliant), you should consult with a federal compliance lawyer promptly. Your company will need to come into compliance as quickly as possible, and you will need to determine what other remedial measures may be necessary. Knowing and willful violations can increase the penalties that are at stake in TCPA investigations and litigation.

What Should I Do if My Company is Under Investigation by the FCC or FTC?

If your company is under investigation by the FCC or FTC in relation to possible TCPA violations, you need to engage federal defense counsel to intervene in the investigation and begin steering it toward a favorable outcome. You do not want to wait to engage defense counsel until charges get filed. It is possible to avoid charges in many cases, and this not only gives you more control over the outcome of the investigation, but it can significantly mitigate the costs of defending against the government’s inquiry as well.

Can TCPA Violations Lead to Criminal Prosecution?

While criminal prosecutions for TCPA violations are less common, they do happen. Criminal charges are particularly common in cases involving efforts to defraud or otherwise harm consumers. With that said, it will be possible to avoid criminal charges in many of these cases; and, again, it is strongly in your interests to engage defense counsel right away.

What Type of Law Firm Does My Company Need for TCPA Representation?

If your company needs help with TCPA compliance or is facing a TCPA-related investigation or lawsuit, you need to choose a law firm that focuses its practice on federal compliance and defense. At Oberheiden P.C., all of our senior attorneys have significant experience in federal compliance and defense matters.

Schedule a Complimentary Consultation at Oberheiden P.C.

Do you have questions about TCPA compliance? Is your company facing a TCPA investigation or lawsuit? If so, we strongly encourage you to contact us right away. To speak with a senior attorney at Oberheiden P.C. in confidence, call 888-680-1745 or request a complimentary consultation online now.