Over the years, as various types of consumer protection statutes have been enacted, there inevitably follow waves of lawsuits alleging violations of those statutes. In the 1980’s we saw this with Prop 65 (lead) lawsuits. The 1990’s and early 2000’s brought many lawsuits over Americans with Disabilities Act (ADA) violations. Recently, revisions to the Telephone Consumer Protection Act (TCPA) have resulted in a dramatic increase in lawsuits alleging TCPA violations. With uncapped statutory penalties starting at $500 per violation, it is easy to see why these are on the rise. Any business using a telephone number to communicate with the public or clients should understand the various changes and regulations.
What is the TCPA?
The TCPA was enacted by the FCC in 1991 to protect consumers from the growing number of unwanted telephone solicitations. In addition to establishing the authority to create a national do-not-call list, the TCPA regulates telemarketing calls, auto-dialing and prerecorded calls. The TCPA restricts unsolicited calls, texts and faxes, while the FCC acts as enforcer. In 2015, the FCC approved new provisions of the TCPA prohibiting companies from making unsolicited phone calls (calls without “express consent”). In addition to increased action by the FCC in response to such calls, the TCPA also creates a private right of action allowing consumers who have received unsolicited calls to bring legal action to recover statutory penalties as a result. Predictably, there has been an upswing in lawsuits alleging TCPA violations.
What does the TCPA provide?
The TCPA, codified under 47 U.S.C. § 227 provides in pertinent part that it shall be:
Unlawful “for any person within the United States, or any person outside the United States if the recipient is within the United States – to make any call (other than a call made for emergency purpose or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice –
- To an emergency telephone line;
- To the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
- To any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 USC §227(b)(1) (emphasis added)
47 U.S.C. § 227 (b) establishes the three elements necessary to establish prima facie violations of cell phone call provisions. These three key elements are:
- “any person” calling a cellular telephone number;
- using an automatic telephone dialing system; and
- without the recipient’s prior express consent.
The changes approved in 2015, further limit telemarketing efforts. Some of the key changes are:
- Marketers must obtain prior written express consent before any robocalls or text messaging can be made.
- When obtaining prior written express consent the marketer must disclose that giving permission will allow robocalls and/or text messages.
- Elimination of the former “established business relationship” exemption.
- Telemarketers must provide an automated opt-out mechanism during each robocall.
- Strict limits on the number of abandoned or “dead air” calls that can be made within any
There exist many other rules that must be followed. For example, even if a consumer has once previously consented, the consumer can revoke consent at any time. Companies may also find themselves in trouble when a wireless number is reassigned to a different customer; in that case a company can only make one unsolicited call to that number; additional calls are violations.
Exceptions and Exemptions
An “emergency” exception exists that covers situations such as weather closures, dangerous persons, or other situations affecting the health and safety of consumers.
Other exemptions include solicitations made on behalf of a tax-empty nonprofit organization, not made for a commercial purpose, or those that don’t include an unsolicited advertisement, even if it is made for a commercial purpose.
If there is any doubt whether a company should take the new regulations seriously, recent examples of large Class Action Settlements should remove that doubt.
American Express – $8.25M
Sirius XM Radio Inc. – $35M
iHeartMedia Inc. – $8.5M
Wells Fargo — $16.3M
State Farm — $7M
Bank of America — $32M
Chase Bank USA — $34M
Capital One — $75M
While these settlements involve very large companies, with much larger volume of calls, these outcomes give a sense for why plaintiff attorneys see value in bringing these class action matters.
So how can a company protect itself? A company can opt to handle these concerns simply by being careful about whom they contact and how they make that contact; however it is important to ensure that any marketing efforts are done by someone with detailed knowledge of TCPA regulations. If a company chooses this option, it may want to purchase insurance for added protection. Another option is to contract the services of a contact center provider that has the expert knowledge and expertise to guide a company through the TCPA regulations. Finally, a company can purchase “scrub lists” containing phone numbers that are safe to call. Scrub list providers should carry insurance, so if there is a violation, the company is indemnified.
In conclusion, the TCPA has become a source of significant class action activity in recent years. Missteps can be costly and companies should tread carefully when doing marketing and customer outreach. These recent changes make it increasingly important for businesses to remain vigilant and in compliance.