What
is the Telephone Consumer Protection Act (“TCPA”)?

The TCPA[1]
was passed into law in 1991.  The Federal
Communications Commission (the “FCC”) is empowered to issue rules and
regulations implementing the TCPA.  Among
other things, the TCPA allows individuals to file lawsuits and collect damages for
receiving unsolicited telemarketing+ calls, faxes, pre-recorded calls or
autodialed calls.

What
is a Telemarketing Call?

“Telemarketing” calls include those made
by advertisers[2] that
offer or market products/services to consumers.  Purely informational calls and calls for non-commercial
purposes are exempt from some of the FCC’s regulations.

What
is an Autodialed Call?

An autodialed call is a phone call, involving
a live person or pre-recorded message, that is placed using an “autodialer,” or
automatic telephone dialing system (ATDS), with the capacity to call telephone
numbers using a random or sequential number generator.[3]  Telemarketers should broadly construe the autodialed
call definition in an effort to avoid unwanted litigation and regulatory action.  For instance, if you are utilizing any type
of modern telephone equipment (anything more sophisticated than a rotary phone)
as part of your telemarketing operations, you may be using an autodialer within
the FCC’s definition.  If you are unsure,
we recommend that you consult with an attorney who has expertise in telemarketing
law.

What
is a Robocall?

A robocall
is a phone call that uses an “autodialer” system that may also deliver a
pre-recorded telemarketing message.

Are
SMS text messages to cell phones considered “calls” under the TCPA?

Yes.  The TCPA applies to both voice and short
message service (SMS) text messages that are transmitted for marketing
purposes.  The TCPA has been interpreted
in recent years to prohibit the sending of unsolicited commercial text messages
to cell phones, with limited exceptions (e.g., messages sent for emergency
purposes).

What
are the new TCPA Rules?

In 2013, the FCC adopted, among other
things, the following additional protections for consumers concerning unwanted
autodialed and pre-recorded calls:

1)     
Prior
express written consent is required for all autodialed and/or pre-recorded calls/texts
transmitted to cell phones and residential land lines for marketing purposes.[4]

Compliance with the E-SIGN Act
satisfies this requirement, meaning that electronic or digital forms of
signature are acceptable (e.g., agreements obtained via email, website form,
text message, telephone keypress or voice recording).

Consumer consent must be unambiguous,
meaning that the consumer must receive a “clear and conspicuous disclosure”
that he/she will receive future calls that deliver autodialed and/or pre-recorded
telemarketing messages on behalf of a specific advertiser; that his/her consent
is not a condition of purchase; and he/she must designate a phone number at
which to be reached (which should not be pre-populated by the advertiser in an
online form).  Limited exceptions apply
to this requirement, such as calls/texts from the consumer’s cellular carrier,
debt collectors, schools, informational notices and healthcare-related calls.

If a dispute concerning consent
arises, the advertiser bears the burden of proof to demonstrate that a clear
and conspicuous disclosure was provided and that the consumer unambiguously
consented to receive telemarketing calls to the number he/she specifically
provided.  It is a best practice for advertisers
to maintain each consumer’s written consent for at least four (4) years, which
is the federal statute of limitations to bring an action under the TCPA.  Evidence of Internet-provided written consent
includes, but is not limited to, website pages that contain consumer consent
language and fields, an associated screenshot of the consent webpage as seen by
the consumer where the phone number was inputted and the complete data record
submitted by the consumer (with time and date stamp), together with the applicable
consumer IP address.

2)     
The
“established business relationship” exemption for telemarketing autodialed
and/or pre-recorded calls has been eliminated.

In the past, advertisers could rely
on an established business relationship (such as a previous purchase) to circumvent
the need to obtain a consumer’s written consent to receive telemarketing
calls.  That exception to the consent
requirement no longer exists.  Advertisers
will have to obtain written consumer consent (outlined above), even if they
previously had a business relationship with the consumer.

What
are the penalties for failing to comply with the TCPA?

The TCPA provides for either actual damages or
statutory damages ranging from $500 to $1,500 per unsolicited call/message.  In determining the final amount of statutory
damages to award, courts analyze whether the defendant “willfully” or
“knowingly” violated the TCPA.  Considering that text message marketing
campaigns often involve thousands to, in some cases, millions, of text
messages, potential damages under the TCPA may escalate especially quickly for
SMS marketers.