Readers of this blog should be aware that the Federal Communications Commission (“FCC”) has approved amendments to the Telephone Consumer Protection Act (“TCPA”), which will go into effect on October 16, 2013. The TCPA amendments require telemarketers to obtain prior express written consent from consumers before placing or sending autodialed and/or pre-recorded marketing calls/texts to consumers. For a detailed assessment of how to obtain consumer consent under the new TCPA amendments, please see our previous blog post on that topic. The amendments also eliminate the established business relationship exception for obtaining prior express consent from consumers. These changes are clear from the language of the TCPA amendments. What has seemed to cause confusion is whether the TCPA amendments will affect only cell phones or if they will apply to residential landlines as well.
TCPA Amendments Will Apply to Landlines
Several commentators have incorrectly stated that calls to residential landlines will not be affected by the TCPA amendments, implying that prior express written consent is unnecessary for pre-recorded calls to residential landlines. Based on the FCC official Report and Order and the fact that high profile, multi-million dollar TCPA lawsuits are being settled almost weekly, telemarketers would be wise to ignore these commentators and obtain prior written consent before making a pre-recorded telemarketing call to a consumer’s home.
FCC TCPA Amendment Report and Order
In its Report and Order, the FCC adopts the TCPA amendments described herein and sets the implementation date for those amendments. The purpose of the Report and Order is to set forth the reasoning behind the TCPA amendments and to address any confusion regarding their meaning and application.
The Report and Order begins by explaining the background and history of the TCPA, then expounds upon the need for amending the TCPA based on changing technology and consumer experiences. Eight pages into the Report and Order, the FCC begins its discussion of the TCPA amendments and states that “[f]irst, we require prior express written consent for telemarketing robocalls to wireless numbers and residential lines. Second, we eliminate the “established business relationship” exemption as it previously applied to telemarketing robocalls to residential lines.” The Report goes on to detail the continuing prevalence of telemarketing calls directed to consumers’ homes and, for that reason, communicates that the TCPA amendments are meant to apply not only to calls directed to cell phones, but those placed to residential landlines as well.
The intent of the FCC is made clear in the Report and Order and with such intentions explicitly stated in writing, telemarketers should obtain proper consent from consumers before making pre-recorded calls to consumers’ homes or cell phones. Failing to do so could lead to severe financial penalties.
TCPA Penalties
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 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 phone calls and/or text messages, potential damages under the TCPA may escalate very quickly.
The application and enforcement of the upcoming TCPA amendments should be of interest to telemarketers and those generally interested in the mobile marketing space. If you are interested in learning more about this topic or pursuing an advertising campaign, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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