Derek: Hi, everyone.
My name is Derek Johnson with tatango.com.
I’m here with Joe Bowser from Innovista Law, and he’s part of the TCPA Defense Force,
essentially a component of the law firm that focuses on TCPA compliance for things like
text message marketing.
You do phone calls as well, right?
Joe: Mm-hmm.
Derek: Anything TCPA.
Joe: Like the faxes.
Derek: Perfect.
I don’t know if anybody…
Joe: They still exist.
Derek: Okay, I was wondering if anybody uses faxes still.
Okay, so one question we get asked a lot is, number one, “How do you select a good TCPA
attorney?”
And then, “Why and when would you actually employ a TCPA attorney?”
Because at least from the kind of conversations I have the first time a brand talks to a TCPA
attorney is when they receive a lawsuit or a threat of a lawsuit.
I’m guessing that’s not the best time to employ or engage a TCPA attorney.
Joe: I think that’s a good sign, and it’s two-way.
Derek: Okay.
Joe: Now, this is absolutely an ounce of prevention kind of area of the law.
The TCPA has statutory damages of $500 to $1500 per call or text.
So the exposure in these lawsuits is significant.
It’s the second most common kind of litigation in federal courts.
The plaintiffs’ attorneys are all over this because of the statutory damages.
So this is definitely an area where you want your marketing team and your legal team to
be working together to make sure that the marketing campaign is compliant with the TCPA.
Derek: From like day one.
Joe: From the development stage.
Dereck: Okay.
So even before you actually launch, like, the process and building it, you want the
TCPA attorneys involved.
Joe: The creative people can work in tandem with the people that are developing the technical,
you know, the rollout of it.
But you definitely want to make sure that issues like consent, who are we calling, what
kind of phone numbers are we calling, because the rules vary based on all of those factors.
Right, so it matters what you’re calling about, it matters what you’re…you know,
who you’re texting, what’s your relationship with them, what’s the level of consent that
you have, what do those disclosures look like.
So legal needs to be involved in making sure that all of those things are buttoned up before
you start the campaign.
Derek: That makes sense.
Joe: Because you can very quickly, if you have a big list, you could start on day one
and expose yourself to an enormous TCPA case.
Derek: Okay.
And this is not something you would advise where a marketer digital strategist can figure
it out themselves.
Joe: Well, the problem with the TCPA is that you can read the law, and then you can read
the TCPA regulations from the FCC, and that’s about a third of the story.
The rest of it is supplied by the courts in trying to give meaning to some very nebulous
phrases that the FCC and Congress have used in the law.
Right, so an automatic telephone dialing system, I have never used that expression before in
my life outside of work, right?
So you have to know how the courts look at various forms of technology to figure out
whether the technology you’re gonna use might be an autodialer, and whether it’s
an autodialer dictates the kind of consent you have and, you know, the nature of the
campaign being informational or marketing-related.
So you need to be able to answer a series of questions to figure out what are the rules
that apply and how do we navigate them.
Derek: So we have a lot of good content, I think, on the Tatango blog, but this is one
of those things that, yes, you can be educated on the topic but let a professional actually
deal with the topic.
Joe: Well, complicating it further, you know, courts can disagree, of course, because they
don’t have very good guidance from Congress or the FCC.
So they’re left to put some real meat on these bones, and they might not necessarily
agree, so you might have a loose standard in one area of the country, a strict standard
in another area.
So if you’re gonna have a national campaign, you wanna make sure that you’re meeting
that strict standard.
So just because a practitioner in Boston knows the rule in that area, doesn’t necessarily
mean that that is the best course of action if you’re gonna have a national campaign
where, say, the Ninth Circuit, which controls California…
Derek: Different areas.
Joe: …Oregon, and Washington, where those rules would apply.
Derek: Wow, okay.
So definitely employing your attorney is good and doing it right at the get-go.
Joe: Right.
Derek: Now, in terms of…
You know, I know a lot of brands have their own corporate counsel.
They might have inside or outside counsel.
Where do you recommend usually involving them, or do you recommend going to something like
the TCPA Defense Force?
How do all these people play together?
Joe: Well, a lot of times we find that the in-house counsels have just a tremendous range
of responsibility, and getting in the weeds on the TCPA and reading the dozens of cases
that come out every month probably isn’t the best use of their time, right?
And so we work with general counsel a lot and in-house counsel a lot to just make sure
that we’re working with the right people on the team so that everybody’s involved,
and the folks in marketing, the folks in tech are all on the same sheet of music.
Derek: Okay, so usually it involves, like, their corporate counsel, the brand, let’s
say, you helping their corporate counsel and providing assistance for the specific part
of what is the TCPA, because it’s very complex, and it seems like you just said that it’s
the second most filed case in federal court.
Joe: Types of cases, right.
Derek: So it sounds like there’s a lot of moving parts all the time that are being updated
and changed, so you need to be aware of those.
And it seems like most general counsel that’s not their top priority.
Joe: It may not be their top priority, or they may not just have the bandwidth to deal
with every area of the law that they need to be responsible for in that level of depth.
Derek: And monitoring it for changes and things like that.
Joe: Right.
Derek: Okay.
So I think we’re on the same page now.
Definitely involve, you know, kind of a TCPA expert, obviously, an attorney.
What would you recommend in terms of if somebody goes out, a brand, looking for an expert?
Obviously, you guys are experts here.
What separates you guys from maybe other TCPA-type attorneys, or what would you say is kinda
the defining factors to being a TCPA expert or attorney?
Joe: Well, it is something that you need to kind of obsess over, right?
Derek: Okay.
Joe: If you’re not obsessed over the TCPA case law, it can be all consuming, then it’s
hard to say that you’re on top of that in the way that an expert is.
So there are plenty of attorneys who say, “I handle class action work,” but it might
be a toxic tort class action one day and, you know, Fair Debt Collection Practices Act
case another day, and a TCPA case on Friday.
When you divide yourself that thin, you may not have that level of expertise across each
of those areas.
Derek: Because your day is focused on TCPA 100% of the day, right?
Okay, so if you…
Joe: You have to like it?
Derek: …if you’re busy enough with TCPA, you don’t have time for other things.
So if you had time for other things you’d be missing stuff in the TCPA [crosstalk 00:07:06].
Joe: In the same way that you do text messaging [inaudible 00:07:08] on everything.
Derek: Yeah, exactly.
And if I [inaudible 00:07:11].
Joe: We can share recipes, but it would be probably better on other things.
Derek: So focus, finding a TCPA attorney that is solely focused, not just says they do TCPA,
not says they know the TCPA.
It’s that’s their focus.
They live and breathe at least during the workday for TCPA compliance.
Joe: Right.
You wanna have someone who knows both the compliance side and the litigation side.
It’s great to know the rules, and that’s obviously tremendously important, but you
also wanna be monitoring where the plaintiffs bar is going, right?
Derek: Okay.
Joe: Because the folks who are just worried about compliance may not see the trends in
the courts.
So you can get ahead of things and adjust your campaigns to avoid being the next target,
right?
Derek: Oh, interesting.
Joe: So we see the cases that get filed, we see the opinions that come out from the judges,
and we’re on top of all of that and sharing that intel at the TPCA Defense Force so that
everybody’s aware of what’s going on so that the litigation news gets with the compliance
people so that we get the benefit of both worlds.
Derek: Okay, so there are maybe some attorneys that focus on TCPA compliance and giving advice
as to how to be compliant, but maybe they’re not doing also the litigation work.
So they’re kind of missing one component of that.
Joe: Right, because the real exposure is on the litigation.
Derek: At the end that’s what costs you the money, right?
Joe: Exactly.
Derek: Okay, interesting.
Anything else people should know?
Maybe what about the TCPA Defense Force, anything specific?
I know you guys are focused solely on TCPA.
Anything you wanna tell the viewers?
Joe: Well, obviously, you want to manage your costs appropriately, right?
So we have a boutique model here.
We believe in it.
We focus on the TCPA.
We have, you know, very excellent attorneys, you know, that we all came from very large
firms.
We have big law training.
So, you know, we can litigate with the best of them and do every day, but you don’t
necessarily need to spend the big law department store model prices to be able to get that
level of expertise.
And, you know, we see the law going in that boutique model where folks really do need
to specialize in an area of the law to that degree.
Derek: So lower cost than maybe the big law firm, but more specialization.
Joe: More specialization and the same quality and bench.
Derek: Sounds like a win-win all also.
Joe: Not trying to promote it here, but it sounds like a good deal, [crosstalk 00:09:35].
Derek: Awesome, my name is Derek Johnson with tatango.com, and I’m here with Joe Bowser
from Innovista Law, and he is part of the TCPA Defense Force, and we were talking about
TCPA compliance.
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