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Court case will provide guidance on oral consent and the TCPA

| Feb 17, 2021 | Marketing Law

It is not uncommon for businesses to buy leads from third-party marketers. These leads often include consumers that have agreed to receive contact about a specific subject matter but are not aware of the specific seller. However, during the initial call the consumer generally gives oral consent to the caller to transfer the call to the seller — a process that marketers have designed to help make sure the contact satisfies the Telephone Consumer Protection Act (TCPA).

What if this contact leads to allegations of TCPA violation?

Generally, the court will apply a two-step process to determine if the TCPA is followed in these types of cases. First, did the caller get consent? Second, can the seller be liable?

When a business uses a third party to generate these leads, the application of this test can get tricky. Vicarious liability can apply and can hold the original business liable. As a result, businesses that use third party marketing systems to generate leads which ultimately transfer the call to their operation are wise to follow this case. If the underlying consent disclosure does not name their business, the consumer could accuse the business of a TCPA violation.

It is also wise for third-party marketers that use websites to generate leads to watch this case. The holding could lead to a need to change future practices. Regardless, the discussion provides an opportunity for these businesses to proactively review webform consents and related disclosures to better ensure they are in line with the expectations of the TCPA.