TelecommunicationsThe TCPA                   

The Telephone Consumer Protection Act (“TCPA”) was enacted in 1991 but has only caught fire as a preferred basis of litigation in the past few years.   The TCPA, with some exceptions, allows individuals to file lawsuits (including class action lawsuits) to collect damages for having received unsolicited telemarketing calls, faxes, pre-recorded telephone calls or autodialed telephone calls.   The TCPA has been interpreted by the Federal Communications Commission (“FCC”) and most courts to include unsolicited short message service (SMS) text messages within its definition of “calls.”

The TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,500.00, per unsolicited call/text message.  Not surprisingly, the TCPA (particularly its applicability to text message marketing) has become fertile ground for class action litigation.  It seems that almost weekly we see another multi-million dollar settlement by, or verdict against, another shocked and apparently unprepared marketer or advertiser.  More significantly, in recent years both the Courts and the FCC have consistently expanded the scope of liability under the TCPA.

The October 16th New TCPA Rules Further Expand Liability

Things are only going to become more challenging for marketers and advertisers as significantly more expansive revisions to the TCPA went into effect this week.   With limited exceptions, the new TCPA rules require prior express written consent for all autodialed and/or pre-recorded marketing calls/texts sent to cell phones and pre-recorded calls made to landlines.  Additionally, under the new TCPA rules, telemarketers can no longer rely on previous business relationships with customers to get around the prior written consent requirement.  These two revisions are obvious traps for marketers, advertisers and their advisors who previously relied upon long standing regulatory guidance and common sense in devising their marketing campaigns.

How to Avoid Liability under the New TCPA Rules

Whether you are a marketer, and advertiser or general counsel of a company that utilizes telemarketing, text message or facsimile advertising, the days of “seat of the pants” TCPA compliance are over.  There is significant nuance to the new TCPA rules and many trap doors leading to enormous potential liability.  New cases interpreting the TCPA are being decided almost daily.   Moreover, the FCC seems intent upon continuing its expansion of liability under the new TCPA rules.  For marketers and advertisers, a single mistake in a single campaign can be catastrophic.  Consulting with an experienced TCPA attorney must be factored prominently into any new marketing campaign.  An audit of all existing marketing plans is also essential.

This topic should be of interest to any company or individual engaging in a commercial venture within the United States, especially those involved in the online marketing, text message marketing, telemarketing and/or consumer product industries.

If you are interested in ensuring that you are compliant with current TCPA regulations, or if you are facing TCPA class action litigation or other regulatory complaint, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

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