As many of you are aware, beginning today and with limited exceptions, prior express written consent will be required for all autodialed and/or pre-recorded marketing calls/texts sent to cell phones and pre-recorded calls made to landlines. Additionally, telemarketers can no longer rely on previous business relationships with customers to get around the prior written consent requirement.
What affect will the federal government shutdown have on enforcement?
The immediate impact of the government shutdown is that the Federal Communications Commission (“FCC”) will not be able to investigate or bring regulatory action against non-compliant telemarketers. However, once the shutdown comes to a close, the FCC will most likely pursue flagrant violations of the new TCPA regulations aggressively. This is due to the fact that telemarketers have known about the impending regulations for more than one (1) year and the FCC has published numerous compliance guides mandating strict compliance with the new TCPA regulations. So while FCC enforcement of the new TCPA regulations may not begin today, in order to avoid a TCPA lawsuit or other regulatory action, it is imperative that all telemarketers comply with the new TCPA regulations as soon as possible.
More importantly, it should be remembered that the TCPA provides for a private right of action, including class action lawsuits, and also authorizes state attorneys general to bring suit against telemarketers that violate provisions of the TCPA. Thus, the federal government shutdown will have no effect on the ability of private citizens or various state attorneys general to bring suit for violations of the TCPA, including the new TCPA regulations that went into effect today.
What are the penalties for failing to comply with the TCPA?
The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA. Considering that telemarketing campaigns often involve thousands to, in some cases, millions, of calls/text messages, potential damages under the TCPA may escalate very quickly, as evidenced by several recent TCPA class action lawsuits.