Telemarketing Software Featured Article

Court Ruling Affirms Telemarketers Must Watch State Laws, Too

December 16, 2013
By Mae Kowalke - Telemarketing Software Contributor

Not knowing is not enough, at least when it comes to the legalities of telemarketing.

A new ruling by the United States Court of Appeals for the Seventh Circuit recently reversed the ruling of an Indiana federal court, affirming that organizations that use robocalls must conform to the calling laws of a given state even if they are calling from out of state.

The significance of this is that organizations are on the hook if they don’t follow the rules of each state they are calling. It is not enough to just follow the Telephone Consumer Protection Act (TCPA). Organizations also must ensure that they are following all applicable state laws.

The TCPA includes a “savings clause,” which expressly states that the TCPA does not supersede state laws that impose stricter intrastate requirements on the use of autodialers and/or pre-recorded messages.

The recent court case that defined the scope of the rules was one where a nonprofit argued that it should be able to deliver non-commercial political messages by way of robocall to landlines in Indiana, which has a strict ban on autodialed calls with very limited exceptions unless the company has consent from those being called. The not-for-profit company said that it should be able to make its calls since the TCPA permits non-commercial political calls.

The lower court agreed with the company since the calls were an interstate matter and that meant it must be a federal question and hence one that was handled by TCPA.

But the Court of Appeals reversed the decision because the TCPA is silent on the question of TCPA preempting state laws that regulate autodialers. The court looked at the express language of the TCPA and congressional intent when the law was enacted, and found that TCPA should not overrule states on this issue.

This ruling has a huge influence on telemarketers, as the law now is clear that they must ensure that they are following all state telemarketing laws in addition to those on the federal level. This can greatly increase the complexity of telemarketing, and it opens the door for more liability. It is now more crucial than ever that telemarketers use good calling software that can manage and monitor calls according to the requirements of each state.

This includes both knowing who can be called and when, but also knowing whether a phone is a landline or cell phone, how many times and when it has been called, and having a call recording system in place to ensure compliance.

Robocalls sound easy. But they aren’t as easy as they might be.

Edited by Rory J. Thompson