The TCPA has been a source of significant class action activity in recent years as businesses seek to navigate the law and plaintiffs’ lawyers seek to exploit its many ambiguities.

The Telephone Consumer Protection Act (TCPA) creates a private right of action for consumers who are injured by violations of the TCPA. It has been a source of significant class action activity in recent years as businesses seek to navigate the law and plaintiffs’ lawyers seek to exploit its many ambiguities. Missteps can be costly.

Encouraged by uncapped aggregate damages, plaintiffs’ lawyers have seized on this opportunity and have taken to targeting any arguable infraction in the hope of reaching settlements from businesses. In just the last year, we have seen a huge spike in TCPA-related class actions. Settlements have ranged anywhere from $6 million to upwards of $70 million and have involved companies in a wide variety of industries, such as banking, financial services, pharmacies, fitness services and medical device manufacturing. The alleged TCPA violations giving rise to these settlements have included:

  • Using an automated dialer to call customer cell phones and/or send text messages without consent
  • Sending unsolicited fax ads
  • Sending unsolicited text messages without consent

Most of the attention involving the TCPA has centered on the stream of class actions around the country. It is important to remember that the Federal Communications Commission (FCC) and state attorneys general can, and do, enforce the TCPA. Under the Communications Act, before the FCC may issue monetary penalties against a company or person that does not hold an FCC license or authorization, it must first issue a citation to warn the company or person.

The FCC has taken the following TCPA actions in 2015:

  • Citation issued to a transportation company for not providing unsubscribe options or any information or links that would allow consumers to easily opt out of receiving calls or text messages
  • Citation issued to a community bank for requiring consumers to agree to receive autodialed marketing text messages on their phones in order to use the bank's online banking services
  • Fine of $87,500 assessed to a flooring manufacturer for unsolicited junk faxes
  • The FCC Enforcement Bureau alerted an online payments company of TCPA concerns related to its user agreement.

TCPA

The TCPA regulates telemarketing calls, auto-dialed calls, prerecorded calls, text messages and unsolicited faxes. The FCC is empowered to issue rules and regulations implementing the TCPA. The following overview highlights many key provisions of the TCPA.

Technology Used to Transmit Communication

An Automatic Telephone Dialing System (ATDS) is equipment that has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator, and (B) to dial such numbers. This is broadly defined and can encompass just about anything that can be turned into an ATDS.

Consent

Is consent required?

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Prior Express Written Consent

Prior express written consent is a written agreement bearing the signature of the person called or receiving a text message. It also may be electronic (for example, a voice recording or an online form), in compliance with the E-Sign Act. Outside of the five elements listed below, prior express written consent is not defined.

Prior express written consent must include the following elements:

  1. Authorizes the caller or sender of text messages to deliver or cause delivery of advertisements or telemarketing messages using ATDS to a specific cell phone number
  2. Identifies the entity (or entity on whose behalf the call is made) seeking consent
  3. Discloses that the recipient (i.e., the person to be called) is not required to sign the consent (directly or indirectly) or agree to enter into such a consent as a condition of purchasing any property, goods or services
  4. Includes the signature (E-Sign is acceptable) of the recipient
  5. Clearly and conspicuously discloses items 1–4.

Can a checkbox provide express written consent, or do there need to be yes/no answer choices?

The E-Sign Act provides several ways to provide an electronic signature. A “checked” checkbox (that is not pre-checked) is likely sufficient to provide express written consent, as long as it is accompanied by the language above and is clear and conspicuous. A question with yes/no choices also works to obtain consent.

A checkbox that requires action is better for delivering “express” consent. Intake forms that leave the checkbox “unchecked,” forcing the consumer to choose to consent are stronger than a pre-checked box, which might fail the clear and conspicuous standard of the regulation.

Prior Express Consent

“Prior express consent” is not defined by the statute. Its constructive meaning is a combination of interpretations by both the FCC and the courts. The following are interpretations that have helped to define “prior express consent” and other non-statutorily defined terms as they apply to the TCPA:

  • “[T]he provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent...”
  • Consent granted only “if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.”
  • “Called party” is the current subscriber or the non-subscriber customary user of the phone.
  • “Current subscriber" is the consumer assigned to the telephone number dialed and billed for the call.
  • “Non-subscriber customary user" includes close relatives of a telephone number included in a family plan or an employee with respect to a business calling plan.

Exemption from Prior Express Consent:

  • Financial Exemption: The following types of calls are exempted from the prior express consent requirement: (1) transactions and events that suggest a risk of fraud or identity theft; (2) possible breaches of the security of customers' personal information; (3) steps consumers can take to prevent or remedy harm caused by data security breaches; and (4) actions needed to arrange for receipt of pending money transfers.

When May a Consumer Be Contacted?

The TCPA prohibits telephone solicitations before 8 a.m. or after 9 p.m. local time at the called party's location.

When Do You Have to Stop?

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What Must Be Disclosed?

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Pepper Points

  • Recent decisions across the country have upheld the FCC’s broad definition of an ATDS (autodialer) to encompass nearly any type of equipment that is not a rotary phone. This latest development enforces what was already a wide scope of activity covered under the TCPA.
  • Working with experienced counsel is imperative when attempting to navigate the TCPA. With TCPA class action lawsuits being filed daily, companies must take compliance seriously. A culture of compliance is key and is not limited to the type, message or technology used for customer communication alone. It also includes obtaining appropriate prior consent and factoring in real-time customer opt-outs, ongoing monitoring of do-not-call lists, suitable disclosure and a long list of other interconnected considerations.
  • There are a few appeals to watch as the TCPA legal landscape has the capacity to change quickly.
    • ACA International v. FCC, which is an appeal to the D.C. Circuit regarding the FCC’s July 10, 2015 Declaratory Ruling and Order. This appeal could affect the definition of “autodialer,” liability for calls to reassigned telephone numbers and the ability of consumers to revoke consent by any reasonable means.
    • Spokeo, Inc. v. Robins, which is currently under review by the U.S. Supreme Court. At issue is whether a plaintiff has Article III standing when he or she can demonstrate statutory damages under the Fair Credit Reporting Act but has not suffered an actual injury. This case could have a significant impact on TCPA litigation.