Several years ago the federal government revised the TCPA and removed the automatic exemption for marketing calls to customers with prior established business relationships. Therefore, businesses must obtain the "prior express written consent" from a customer before telemarketing, advertising or texting from an auto-dialer, prerecorded device or software solution. Written consent must be clear and conspicuous and not be a condition of purchase. In addition,
a business cannot text a customer to ask if it is okay to text them without prior express consent. The express written consent must be provided BEFORE you contact the customer.
In a non-telemarketing context, where the consumer gives the salesperson his or her cell phone number, there is no violation of the TCPA if the sales person calls or texts the customer on their cell without express written permission. There is no violation if you are calling or texting the customer to complete an active sales transaction or to seek authorization for repairs to a vehicle already in the shop, or to notify the customer that the vehicle is ready to be picked up. However, if the customer has not provided the dealership with the cell number or if the marketing call is unsolicited and done for the purpose of selling products or services then you must have prior written permission before calling the customer.
The statutory penalty is $500 per violation. If a customer can show the violation was "knowing" or willful a court can increase the penalty up to $1,500 per violation. In addition, the TCPA includes a private right-of-action provision allowing consumers to individually sue a business who violates the law for damages of up to $500 per call or actual damages for any violations (or up to three times the statutory or actual damages for willful or knowing violations). This can result in hefty fines, penalties or even a class action suit. The LaBonte Law Group is currently defending an new car dealer client from a class action suit alleging TCPA violations so it cannot be stressed strongly enough that dealers must ensure that all dealership employees are aware of, and comply fully with, the TCPA.
It is recommended that when you sell a vehicle to a customer or service their vehicle that you request their express written permission to text them in the future. The same request for express permission should be listed on your websites and social media sites.
The biggest mistake you can make is to fail to honor customer opt-out requests. Generally, if a dealer inadvertently contacts a customer without express written permission the customer usually will not file a complaint or pursue litigation if the dealer immediately honors their request to cease all further solicitations. While the dealer may be in violation of the law a formal complaint may not be made if the customer's contact information is removed from your database and no further solicitations are made. Therefore, it is imperative that you have a strict company policy to ensure that all opt-out requests are timely honored.
