Club Insider

Complying With the Telephone Consumer Protection Act and Avoiding TCPA Lawsuits

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Paul R. Bedard, EsquirePaul R. Bedard, Esquire

Congress passed the Telephone Consumer Protection Act (TCPA) in 1991. The TCPA was subsequently signed into law by President George H. W. Bush as Pubic Law 102-243. This law was designed to limit telephone solicitations, including those involving automated dialing systems, fax machines, artificial or pre-recorded messages and text messages during a time when telephone landlines were the predominant form of communication and when many consumers were being exposed to unsolicited calls from telemarketers at nearly all hours of the day and night.

Now that consumers have largely moved away from utilizing landlines to relying on their mobile devices, many businesses naturally communicate with their customers largely through these wireless devices. This technological shift has contributed to the increasing number of TCPA compliance issues for many organizations. In fact, it has been reported that TCPA lawsuits increased an incredible 1,298% between 2010 and 2016! Given that a single violation can range from $500 to $1,500, and that the fine for a single violation can then be multiplied when the violation is repeated, maintaining compliance with the TCPA is absolutely critical.

Many of the key players within the health and fitness club industry have been hit hard by TCPA lawsuits and have presumably ramped up their TCPA compliance efforts. For those clubs that have not taken such steps towards TCPA compliance, there is no better time than the present to be proactive on this front. The following will provide some suggestions in this regard. However, this article is not intended as legal advice. Please consult an attorney for specific direction when undertaking TCPA compliance efforts.

First and foremost, health club owners and operators must obtain express written consent from clients and prospects to be contacted for marketing purposes. Whether or not a prior business relationship exists, written consent is required for automated calls, pre-recorded messages or texts to be sent to a mobile device. Pre-recorded messages to a landline for marketing purposes are also prohibited without prior consent.

When pre-recorded messages are utilized, the company behind the call must be clearly identified at the beginning of the message, and a telephone number where the company can be contacted must be provided. Consumers who are contacted for promotional purposes must also be given the option to opt-out from these communications at any time. Any automated promotional messages that result in the consumer incurring any costs for these messages without prior express written consent are also prohibited by the TCPA.

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