The number of class-action lawsuits brought under the Telephone Consumer Protection Act (TCPA) against businesses that regularly call consumers for telemarketing and non-telemarketing purposes is rapidly increasing, according to WebRecon LLC. Under the TCPA, businesses making autodialed or prerecorded calls or sending texts to consumers may need to obtain prior express consent from those consumers or find themselves in violation of the law. WebRecon assembled data on lawsuits filed over the past year and found that TCPA complaints had grown 116 percent from the same period last year. Because the TCPA permits call recipients to bring class action lawsuits and its technologically outdated terms can be interpreted broadly, the TCPA has become a favorite of the class-action plaintiffs’ bar.

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The US Federal Communication Commission’s Consumer and Governmental Affairs Bureau is seeking comment on a petition aimed at clarifying that the “capacity” of an automatic telephone dialing system (ATDS) is limited to what a system is capable of at the time a call is placed. The ambiguity present in the law has led to numerous class-action lawsuits being filed against businesses around the country, with a variety of different opinions emerging as judges are tasked with interpreting and applying the antiquated technological terms used in the statute to modern communications networks. The petition for expedited declaratory ruling and/or expedited rulemaking, filed by the Professional Association for Customer Engagement (PACE), asks the FCC to rule that a dialing system is not an ATDS under the TCPA unless it can dial numbers without human intervention. A public notice released said that comments are due Dec. 19, 2013, and replies are due Jan. 4, 2014, in CG docket 02-278.

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As if the tidal wave of TCPA robocall lawsuits wasn’t enough, the Seventh Circuit recently ruled that the TCPA does not preempt more restrictive state laws, thus clearing the way for Indiana to pursue its claims in the case, and likely encouraging the filing of private putative class actions under the same law and related Indiana laws that provide a private right of action with a statutory minimum damages penalty. The Seventh Circuit’s ruling shows that telemarketing practices must be cognizant not only of the TCPA and its new and more stringent consent requirements, but also the patchwork of state laws that are even more onerous and stringent.

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