The Telephone Consumer Protection Act (TCPA), enacted by Congress in the 1990s, governs telephone communications between businesses and consumers. Among other things, the TCPA and Federal Communications Commission (FCC) rules under the Act restrict business communications to consumers’ cellular telephones – including text messaging – and residential landlines.
Today, every company that interacts with consumers by telephone faces the specter of private-party claims under the TCPA, enforcement actions by the FCC or state regulators, or even a private class action. In my practice, I see more and more litigation brought against industry players under the TCPA, including both service providers and their third-party marketing representatives.
As an industry, we make millions of outbound informational calls each month from monitoring facilities, and plenty of those calls are to cell phones and residential landlines to advise persons on a call list of alarm activations or other circumstances at a premises. These calls are covered by the TCPA and, under the wrong circumstances, could cause problems.
You should make sure your subscriber contract addresses this issue. While it may not be practical to get prior express written consent from every person on the call list, there are ways a smart lawyer can limit your liability for violations of the TCPA.
Here’s a brief primer on the TCPA that can help you can avoid costly mistakes when calling consumers:
Calls to Cellular Phones. The TCPA restricts calls to cellular phones using an auto-dialer or a pre-recorded or artificial voice. The definition of what constitutes an auto-dialer is broad – any technology to store or produce and dial random or sequential numbers (Yikes...does that include my iPhone 6?) To be clear, the TCPA does not just restrict telemarketing calls to cell phones – it also restricts debt collection and “informational calls,” which are essentially calls that only provide information to the consumer without selling something.
To make these calls to cell phones legally, you must have express written consent for calls (or texts) that have any sales-related component and express oral or written consent for non-telemarketing calls – purely debt collection and informational calls.
Calls to Residential Telephones. The TCPA also restricts calls to residential landlines that deliver pre-recorded messages or use artificial voices. Telemarketing calls to landlines now require a consumer’s prior express written consent – a recent change by the FCC from simply just prior express consent. You cannot skirt this rule because of an existing business relationship with the consumer, as the FCC has also eliminated that exemption.
Do Not Call Registry and Requests. The TCPA also prohibits calls to consumers who place their name on the National Do Not Call Registry or where the consumer requests that you not contact them. This rule applies to all calls – cellular or residential landline – and not just those made with an auto-dialer or using a pre-recorded or artificial voice. The act also requires companies to maintain internal do not call lists and to discontinue making calls to consumers who ask not to be contacted within a reasonable time, not to exceed 30 days.
Enforcement
The FCC and state attorneys general enforce the TCPA and can bring a civil action in federal court seeking money damages or an injunction prohibiting certain conduct.
Perhaps more importantly for our industry, the TCPA gives citizens the right to litigate claims under the Act and establishes specific statutory damages for each violation – $500 or the litigant’s actual monetary loss, whichever is more. Those damages are trebled for “willful” violations of the act – turning a per-call statutory fine of $500 into a $1,500 violation, which can be a very expensive phone call.
The TCPA does not require a private litigant to show an actual injury – it is enough that they simply received the telephone call in violation of the Act. Worse yet is the possibility of a class action, which are often not covered by insurance and can threaten a company’s very existence.
Eric Pritchard is a Philadelphia Lawyer who spends his workday making the world safe for electronic security providers. He can be reached at [email protected]. This column does not constitute legal advice; please contact an attorney with questions.
