The Telephone Consumer Protection Act (TCPA) allows individuals to sue and recover damages for receiving unsolicited telemarketing phone calls, prerecorded calls, autodialed calls, text messages or faxes. In the past, companies were allowed to defend against many of these claims by demonstrating the consumer had given their "prior consent" to be contacted or that there was an established business relationship. Effective October 16, 2013, the rules will change.
The revised rules will require virtually all businesses to obtain prior express written consent before making (1) any autodialed or prerecorded call or text to a cell phone; or (2) any prerecorded call to a residential land line for marketing purposes. The revised rules eliminate the established business relationship exception and heighten the standards for establishing prior consent. See generally FCC Report and Order, CG Docket No. 02-278 (Feb. 15, 2012).
Obtaining prior express written consent is now critical. At a minimum, to try to avoid liability while using an autodialer or while engaging a mass-text marketing campaign, you must obtain express written consent that is unambiguous and conspicuous, making it clear that the consumer will receive autodialed or prerecorded phone solicitations.
Under the new rules, the consumer must designate the phone number at which he or she may be reached, and the consumer's phone number cannot be pre-populated in an online form. Written consent is invalid if it is a condition of purchase or includes marketing information. While businesses do not need to obtain an actual signature from the customer, they will need to comply with the E-Sign Act for signatures.
Without a doubt, the standards for what constitutes sufficient prior express written consent will evolve as the courts deal with lawsuits arising out of these new rules.
One thing is clear—an established business relationship, such as a purchase, no longer excuses businesses from obtaining express written consent. Furthermore, it is important to note that businesses can be held liable for TCPA violations committed by their vendors, and so businesses should ensure that all vendors are aware of and in compliance with these new rules as well.
Failure to comply with the TCPA can be costly. The TCPA allows consumers to recover between $500 and $1,500 per violation, which can result in sizeable liability in class action lawsuits involving thousands or millions of calls and/or text messages. It is no surprise that the number of TCPA lawsuits has more than tripled since 2010, and the implementation of this week's new rules may result in even more opportunities for plaintiffs to assert claims based on alleged TCPA violations.