The Telephone Consumer Protection Act (TCPA) impacts any business that contacts consumers by phone, text or fax. Among other things, it limits the ability to place calls and send texts to consumers using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice (APV). Currently, almost any dialing system can be interpreted to be an ATDS. A business must have prior express consent before using an ATDS or APV in contacting a consumer's cellphone for informational purposes, and must have prior express written consent if the contact is for marketing purposes. Prior express written consent is also required when an APV is used to call a residential landline.
Click here to view an overview of TCPA rules. The overview does not reflect every detail needed for compliance under the ever-changing landscape of TCPA law, as the type of prior consent required, if any, depends on many factors, including the nature of the contact and the devices used to deliver the message to the consumer.
In 2015, there were significant developments on the issue of "consent" under the TCPA. The Federal Communications Commission (FCC) released a Declaratory Ruling and Order (Ruling) in July to clarify the conduct that violates the TCPA and to provide guidance to help callers avoid violations and subsequent litigation. The FCC Ruling confirmed that:
- Text messages are considered "calls" under the TCPA, making them subject to the same consent requirements as calls to cellphones.
- Internet-to-phone text messages require consumer consent.
- Consent is required from the actual called party, which is the subscriber to a phone number or the customary user of that number, not the intended recipient of the call. A business can only call a reassigned phone number one time before facing liability.
A consumer may revoke consent at any time and through any reasonable means.
Additionally, several Courts weighed in on what constitutes "prior express consent." For example, the Court of Appeals for the 11th Circuit evaluated whether a business had consent under the TCPA to send a text advertising message to a consumer who listed his cell phone number on a New Donor Information form when he made a donation at a plasma collection center. The Court affirmed the district court's dismissal of the consumer's claims, finding that voluntarily providing a cell phone number demonstrated prior express consent to be contacted. See Murphy v. DCI, No. 14-10414 (11th Cir. Aug. 20, 2015). A California District Court dismissed a proposed TCPA class action against Microsoft on similar grounds, finding that two California consumers gave Microsoft express consent to text them about company promotions when the consumers provided their phone numbers voluntarily. See Pietzak v. Microsoft, No. 15-5527-R (C.D. Cal. Nov. 17, 2015). Notably, neither of these cases addressed that "prior express written consent" is required for telemarketing texts. It is expected that Courts will be asked to evaluate that issue in 2016, along with other issues such as what constitutes a "reasonable means" of revoking consent.
Failure to strictly comply with the TCPA can result in significant risk. Reports indicate an increase in the number of individual and class-action TCPA private right of action lawsuits. The statutory damages for any single violation of the TCPA are $500 per violation, or $1,500 per violation where a business knowingly and willfully violated the TCPA. Businesses need to make sure they have policies and procedures in place to acquire and maintain records of the appropriate level of consent obtained from consumers.