LEGAL
The Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., was originally intended to protect consumers from aggressive telemarketers.
The TCPA, however, has been used more broadly as a tool by plaintiffs' lawyers and regulators alike to address much more than telemarketing. The TCPA regulates, among other things, businesses calling or texting consumers on their cell phones using an autodialer or artificial or prerecorded voice, as well as certain calls to landlines using an artificial or prerecorded voice. Such calls and texts may be prohibited by the TCPA even if they are not telemarketing. Almost all communications, including information that customers want and need, are broadly covered by the TCPA if made to a cell phone using an autodialer or using an artificial or prerecorded voice.
As a result, the TCPA makes companies easy, and very profitable, targets of plaintiffs' lawyers. Violations of the TCPA carry statutory damages – meaning a plaintiff does not have to allege or prove any actual harm as a result of the call – of up to $1,500 per call. These damages aggregate quickly and incentivize plaintiffs' lawyers to file class action lawsuits against legitimate companies seeking damages in the millions of dollars, or more, in potentially "bet the company" litigation for routine communications. Accordingly, companies of all sizes need to ensure that their communications practices are in compliance with the TCPA to avoid being caught off guard by a class action lawsuit.
For calls and texts regulated by the TCPA, prior express consent from the customer is required before a business can send an informational communication to a cell phone. Individuals who provide their numbers to a business during a transaction are deemed to have given their "prior express consent" to be called in relationship to that transaction. For instance, providing a number on a gym membership application or to an airline when purchasing flights.
While prior express consent is a fairly straightforward concept, its application in the real world raises issues that are exploited by plaintiffs. One such issue concerns reassigned wireless numbers, a common phenomenon with consumers. When individuals change cell phone numbers or purchase a new phone, their old numbers are typically reassigned or "recycled" to someone else. There is currently no database of reassigned numbers and it is virtually impossible to determine if a number has been reassigned without contacting the number and seeing who answers.
While businesses often have the prior express consent to call the customer who originally provided the number, the Federal Communications Commission, the agency tasked with prescribing regulations implementing the TCPA, as well as some courts, have found that businesses which through no fault of their own contact someone other than their customer because of a reassigned number are liable under the TCPA. Furthermore, reassigned cell phone numbers are not the only problem – a federal appellate court recently revived a TCPA class action involving an instance where a roommate of the individual who had provided consent to be called answered the household landline phone instead of the consenting party, received a prerecorded message, and subsequently brought a TCPA class action based on this single call.
While the FCC has provided businesses with a limited one-call "safe" harbor from TCPA liability for reassigned wireless numbers, the efficacy of this safe harbor has yet to be tested and the FCC has not provided for a similar safe harbor for calls to landlines that reach unintended persons to address situations like the roommate scenario. As a result, businesses should consult with experienced counsel to assure that they are TCPA compliant in the face of these, and other, evolving practical realities.
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