Telemarketing: Why You Could Get Sued

It is difficult in many cases—if not impossible—to ensure that the consumer gave the appropriate consent to be contacted.

The Telephone Consumer Protection Act (TCPA) requires prior written consent for calls and texts to consumers' mobile phones and for prerecorded telemarketing calls to residential landline numbers. TCPA lawsuits filed by consumers are on the rise -- growing by a factor of 12 from 2010 to last year -- and a number of large insurance brands have been part of multimillion-dollar TCPA settlements. To mitigate TCPA risk, Jornaya works with brands that are dialing out on third-party leads and leads generated from their own websites. The process begins with ensuring that the websites where consumers are interacting display TCPA-compliant consent language and that consent to be contacted was given by the consumer. After a consumer agrees, and when a brand leverages a call center to get consumers on the phone and deliver warm transfers, how does the brand know that the consumer gave consent to be called and that there is proof of it? How the Lead Form to Warm Transfer Practice Works Consumers fill out lead forms, and the publisher’s call center (or separate entity that acquired the lead in the ping/post ecosystem) dials the consumer to make contact, qualifies the consumer’s intent to get an insurance quote, receives the consumer’s agreement to speak with an insurance agent and warm transfers the call to the brand. Typically, when the live call is transferred, the consumer’s Caller ID is what the brand sees; therefore, it appears that the consumer is calling the brand directly. In actuality, the call was transferred via the third-party call center. If the publisher of the lead being called was not the same company that is placing the calls, then that publisher has sold the lead to another entity that is dialing/transferring the lead to your brand. See also: Why Buy Cyber and Privacy Liability. . .   This puts your brand two steps away from the lead form being filled out, making it difficult—if not impossible—to ensure that the consumer was exposed to TCPA-compliant language and gave the appropriate consent to be contacted. Without a way to ensure that consent was provided, and without persuasive proof of that consent,  the brand is taking on the risk of being sued for violating TCPA law simply by answering the inbound phone call. With an increase in these kinds of call marketing practices, we’ve seen a parallel increase in these lawsuits. An insurance carrier or agent has no idea whether there was consent because he doesn't know the origin of the phone call. If it’s an actual consumer calling directly, you’re fine. If it’s a warm transfer from a call center that dialed a consumer that filled out a lead form, it may not be possible to get that proof of consent. At a minimum, it will require a significant amount of effort to piece together all the steps the call went through. Some brands still aren’t concerned about the TCPA exposure with regard to warm transfers, because they assume the burden lies only with the company that is actually dialing the phone--in this case, the call center. But the fact that you’re not the one making the outbound call does not necessarily absolve you of the responsibility nor dissuade attorneys from dragging you into the lawsuit, costing time, money and damage to your brand. Recently, lawsuits have popped up from this practice, where all parties involved are named in the lawsuit, including the brand buying the warm transfers. See also: Ransomware Threat Growing for Phones   What You Can Do to Protect Your Brand
  1. The first step is to work with your call sources/partners to understand how they are driving calls to you. Explicitly ask them if they are driving calls via warm transfers.
  2. If they are, ask them if they are dialing out to consumers who have filled out an online or mobile lead form.
  3. If they are, it is critical that you have a way to trace the call data to the original lead form.
  4. You then need to know definitively that the consumer consented to be contacted on the lead form and have persuasive proof the appropriate consent took place.

Jaimie Pickles

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Jaimie Pickles

Jaimie Pickles is co-founder and CEO at First Interpreter.

He was previously general manager, insurance, at Jornaya, which analyzes consumer leads for insurance and other industries.  Before that, he was president and founder of Canal Partner, a digital advertising technology company, and president of InsWeb, an online insurance marketplace.


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