Early last week, the news came that Best Buy chose to settle their TCPA class action for $4.55 million. When the case was initially filed, Best Buy attempted to defend their use of an automated calling system as purely informational, and thus exempt from TCPA. They argued that alerting their customers of their rewards balance did not constitute a sales call. However, the Ninth Circuit determined that the calls were "dual purpose" in that while Best Buy was informing reward members of expiring rewards, they were also stressing that those rewards to be used. The court found that using rewards was equivalent to the purchase of a good or service. Following this line of thinking, Best Buy's calls were also sales calls, which are enforceable under the TCPA.
If you use Call-Em-All or any other automated calling service, you shouldn't be too concerned about this lawsuit. There were several steps which Best Buy could have taken had it been more aware of TCPA rules and regulations.
Know The Law
Late last year the FCC's changes to the TCPA went into effect. The FCC and the FTC now have nearly identical rules when it comes to telemarketing with and automated calling system. They both define a telemarketing call as one which solicits the purchase of a good or service. As the Best Buy case showed, it can be a blurred line sometimes. A good rule of thumb is: If your call will lead to a sale for your business, don't make it. (Unless you have specific written opt-ins).
Express Written Consent
This is probably the single most important thing to guarantee compliance with TCPA. Had Best Buy included a check box on their rewards application letting their customers opt into balance alerts via an automated call, they could have simply called those customers and would have most likely kept themselves out of the courtroom for the last three years. While the rules read "express written consent", there are many forms of consent which the FCC recognizes to be valid. These include paper contracts or forms, online forms or even emails. There is a stipulation to this that is important: Consent to receive sales calls using an automated calling system cannot be a required condition buying a good or signing up for a service. In other words, consent has to be purely optional.
Allow Easy Opt-Out
The complainant asserted that he attempted to opt out of these calls through Best Buy's automated system. But processes which are disjointed can be confusing and aren't always the fastest to sync up. The complaint also said even after opting out, the calls continued. Unless you can prove that the recipient of the call consented to calls again, honor the opt out and do not call them again. Use a system which allows the recipient to opt out during the call. If the call is a sales call, use what we call a "Sales Intro Message" which lets the recipient know who is calling and how they can opt out of the call at any time by "pressing 3", for example. While you might assume that this intro message would cause everyone to opt out of the calls, that is not the case. All of the above factors weigh into why someone chooses to opt out or not. If they know who you are, have asked to be called, then they have no reason to opt out. It is a courtesy that call recipients appreciate.
We know it can always be scary to see large settlements like this when you are a business using an automated calling system, but knowing the law and being armed with the facts can help you steer clear of lawsuits. If you'd like, you can read the Ninth Circuit court's decision.