The federal Telephone Consumer Protection Act (TCPA) has rightly garnered significant attention from the plaintiffs’ bar, media outlets and concerned potential class action defendants. But far less attention has been paid to“mini-TCPA”state laws that are similarly draconian and, in some instances, have different requirements than the federal statute.
Connecticut’s newly amended telemarketing law (Conn. Gen. Stat. § 42-288a) went into effect on October 1, 2014. In addition to behavior governed by the TCPA and its no-call provisions, the Connecticut law also includes the following:
- The Connecticut law prohibits a “telephonic sales call” made without prior express written consent, as it is defined under the new federal TCPA rules. “Telephonic sales call” is defined to include SMS and MMS messages, which are already covered by theTCPA. While the legislative history does not appear to consider it, creative plaintiffs’ counsel may seize upon this language to try and expand liability to push messages or in-app messages sent to a mobile telephone through the Internet, which the FCC has so far declined to do with the federal TCPA. Alston & Bird has received nonbinding indications from the FCC that push notifications in mobile apps will not be subject to the TCPA if they are delivered within the application only and not through a cellular network.
- A violation of the Connecticut law is also deemed an unfair or deceptive trade practice. Under the Connecticut Unfair Trade Practices Act (CUTPA), a private plaintiff is authorized to seek actual damages, punitive damages and reasonable attorneys’ fees in an individual suit or a class action, which presents an additional incentive for plaintiffs—and their attorneys— to bring suit under the statute. However, the requirement of actual damages might allow a company protection under a harm defense, which is not available in cases of statutory damages like under the federal TCPA.
- Finally, the Connecticut law provides for an outsized fine of up to $20,000 for each violation, though the statute does not state whether each “telephone call” or “text or media message” sent without prior express written consent is a separate violation. Under CUTPA, an additional penalty of up to $5,000 may be awarded for willful violations.
Following suit, the New Jersey legislature on September 22, 2014, passed a new version of the state’s mini-TCPA, which awaits signature by the governor. The law prohibits the sending of an unsolicited advertisement by means of a text message to a resident of New Jersey if it may cause the recipient to incur a telecommunications charge or a usage allocation deduction. The bill defines text messaging as “the wireless transmission of text, images, or a combination of text and images by means of a cellular telephone, a paging or message service, a personal digital assistant, or other electronic communications device.” As with the Connecticut law, this ambiguous language leaves open the possibility that aggressive plaintiffs’ counsel may argue that the law covers communications like push messages or in-app messages sent to a mobile telephone. The new law provides a defense when the sender has the recipient’s express permission, including the number to which text message advertisements may be sent, but there are clear open questions on what will suffice as express permission, since the term is undefined. Violations result in a monetary penalty of $10,000 for a first offense and $20,000 for any subsequent offense. Violations may also result in cease and desist orders issued by the state’s attorney general, the assessment of punitive damages and the awarding of treble damages and costs to the injured party. The effective date depends on the date the law is officially enacted.
Thankfully for businesses, many states’ mini-TCPAs are limited to violations of the state’s do-not-call laws and are not as precarious for companies engaging in telemarketing. These laws are generally uniform and allow for relatively easy compliance. But as in the case of Connecticut and New Jersey, the states below have some quirks in their mini-TCPAs that businesses should recognize:
Click here to view the table.