By: Edward A. Maldonado, Esq. May 24, 2020 – Coral Gables, Florida – Categories FCC Practice, The TCPA
The Federal Telephone Consumer Protection Act (TCPA) was enacted in 1991 and later codified into the Federal Communications Act (FCA) under 47 U.S.C. § 227 et. seq. The TCPA protects consumers from unsolicited and unauthorized calls and texts sent for marketing purposes and through an Automated Telephone Dialing System (ATDS) to subscribers of landline or wireless telephone numbers. The FCA prohibits the use of all ATDS except for specific statutory purposes. The TCPA encompasses the use of ATDS for marketing purposes.
The TCPA places strict liability on marketer for violations and allows statutory damages from $500.00 per call or text or $1,500.00 per call or text for intentional or repeated violations. The TCPA violations may be enforced by the FCC or under a private cause of action. If the violations are widespread by a company the TCPA allows class actions to be initiated against the offending companies. The statute also allows the recovery of attorney fees from the violators.
Because of more recent dependency of consumers and businesses on interaction through smart phones, civil litigation over the TCPA and violations have surged since 2009, particularly claims for class action relief. The FCC has statutory authority to interpret the language of the TCPA under the FCA and promulgate rules for enforcement by itself or any aggrieved party. Since 2003, the FCC has taken greater efforts to establish interpretations and rules applicable to the TCPA to match emerging technologies and industry practices. However the language of the TCPA, or interpretations by the FCC, are far from crystal clear and the TCPA has been the source of much litigation on application of the TCPA by the courts.