TCPA PRACTICE

Federal Telephone Consumer Protection Act of 1991 (TCPA)

I’m with a business defending an alleged TCPA claim
I’m with a business in need of better TCPA compliance
I’m a victim of an unwanted robocall or spam text

The TCPA is a strict liability statute, meaning that unless having exception under the statute, by FCC interpretations and rules, or by the courts, failure to comply with the statute results in liability to the marketer and/or sender of the call or text message sought to result in the sale of goods or services in the U.S. In addition to administrative enforcement by the FCC and FTC, the statute allows persons that are victims of TCPA violation to file a private cause of action against violators. Base statutory damages range from $500.00 for straightforward violations to $1,500.00 for willful and intentional violations (the senders know that they were violating the law and did not care). The statute also allows the recovery of attorney fees against violators, and, when the violations are widespread by a company allow for class actions to be initiated against the offending companies.

Subject to exceptions, the TCPA outlaws four basic practices.

• The TCPA makes it unlawful to use an automatic telephone dialing system or an artificial or prerecorded voice message, without the prior express consent of the called party, to call any emergency telephone line, hospital patient, pager, cellular telephone, or other service for which the receiver is charged for the call. 47 U.S.C. §227(b)(1)(A).
• The TCPA forbids using artificial or prerecorded voice messages to call residential telephone lines without prior express consent. §227(b)(1)(B).
• The TCPA proscribes sending unsolicited advertisements to fax machines to be unlawful. §227(b)(1)(C).
• The TCPA bans using automatic telephone dialing systems to engage two or more of a business’ telephone lines simultaneously. §227(b)(1)(D) See generally, Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, at 373 (2012).

The TCPA also empowers the FCC to make rules applicable to the interpretation and enforcement of the Act where the TCPA is silent, unclear, or new technologies require interpretation to adjust to preserve the intent of the Act. From this basic framework, the TCPA has been interpreted by the FCC to:

• Define telemarketing as the making of a call, or sending a message, for the purpose of encouraging the purchase, rental, investment in property, goods or services. 47 C.F.R. § 64.1200(f)(12). Courts presently must evaluate Section 64.1200(f)(12) if this ultimate purpose of the communication fits this definition and is clear from the context. See, Golan v. Veritas Entn’t, LLC, 788 F. 3d 814, 820 (8th Cir. 2015).
• Define expressed written consent is rerquied for calls and texts to assigned wireless numbers, but written consent by federal E-sign Act (electronic means and record of acceptance) is sufficient. In the Matter of Rules and Regualtions Implementign the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd 1830, 1838 (Feb. 15 2012). This is particularly true if the call or text ustilized an automatic telephone dialing system or pre-recorded voice. See, Breslow v. Wells Fargo Bank, N.A.. 857 F. Supp. 1316, 1319 (S.D. Fla. 2012) aff’d 755 F.3d 1265 (11th Cir. 2014).

National or State Do Not Call requirements and violations

As of October 1, 2003, the Federal Trade Commission (FTC) amended the Telemarketing Sales Rule (TSR) to give consumers a choice about whether they want to receive most telemarketing calls by making it unlawful for most telemarketers or sellers to call a number listed on the National Do Not Call Registry. See, 15 U.S.C. § 6152 and 16 C.F.R. Part 310. The law and prohibition runs concurrent with the TCPA and statutory damages of the TCPA. See, 47 C.F.R. § 64.1200. The result is that if a subscriber places their assigned number on the National or State Do Not Call Registry, after 30 days, telemarketers cannot blind call the number if they do not have consent or fall within exceptions to the DNC. This also means that a single call or text can violate the TCPA and DNC independently, and the single call or text may accrue damages for each separately.

The advancement of technologies has resulted in a greater ease and dependency on the use of mobile telephones, text messages, and mobile phone applications by the average person. The coverage of liability under the TCPA and DNC has expanded with the progression of technology. The focus of our firm’s practice has revolved around the Federal Communications Act since 1999. In that time, we have extensive experience with the TCPA and DNC cases but more so we have an understanding of the emerging technologies and processes involved with call transport, auto-dialer systems, SMS text message routing, and mobile Application push messaging when used to reach consumers and customers for customer support. This important for both assisting companies in compliance programs as well as in obtaining focused electronic discovery from offenders when representing TCPA victims in federal court.

The TCPA and its compliance is a serious and important for both businesses and consumers.

No one likes an unwanted and illegal calls or texts bothering them – No one. When targeted and done correctly, telemarketing and SMS marketing campaigns can be beneficial to both businesses and consumers. If someone has registered their number on the Do-Not-Call list but nonetheless receives a telemarketing call or text without their consent, the reasonable possibility of that called party actually becoming a customer is diminished. Doing it right is what the TCPA is all about. The environment of robocalls stands to change by 2020. The FCC has pushed to implement and enforce Handshake/Stir mobile technologies to alert consumers of spoofed calls. This will provide consumers better notice of calls from call centers, scams and on behalf of a company seeking to market their goods and services, but will not eliminate unwanted and illegal calls or texts. Even when companies implement compliance protocols, errors can be made and glitches can happen that result in TCPA violations. Our firm’s philosophy is to work with both TCPA compliance and TCPA consumer violations toward the TCPA’s purpose and intention. We defend and work with companies to get TCPA compliance right. We prosecute private actions of consumers when serious violations are clear, intentional and widespread. The perspective of both worlds of the TCPA we strive to serve our clients rights and responsibilities.

Contact Maldonado Law to schedule a confidential initial consultation and learn about our TCPA matter as well as rates our pricing.

TCPA PRACTICE

• TCPA Defense
• TCPA Compliance
• TCPA Consumer