Hold the Phone!

In 1991, Congress passed the Telephone Consumer Protection Act (“TCPA”) in response to growing concerns about the use of robocalls. Under the TCPA and related regulations enacted by the Federal Communications Commission (“FCC”), it is unlawful to place unsolicited calls using an automatic telephone dialing system (“autodialer”) or an artificial or prerecorded voice without prior express consent of the recipient. And while the TCPA does not expressly reference text messages, the FCC and courts have interpreted the statute to apply to those as well.
Notably, communications do not need to be made for “telemarketing” purposes to give rise to liability. In fact, even seemingly innocuous messages can lead to protracted and expensive litigation. The Los Angeles Lakers franchise learned this lesson the hard way after mass “thank you” texts to fans bought the team a class action lawsuit. And because calls or texts made in violation of the TCPA can result in damages of $500 a pop – $1,500 for each knowing or willful violation – damages can increase rapidly.
For numerous reasons – not least of which is the prospect of obtaining large damages awards – courts have seen a dramatic increase in TCPA lawsuit filings in recent years. For its part, the statute itself has created questions spawning confusion and additional litigation.
One such question is: “What constitutes an ‘autodialer?’” While some courts have interpreted the term to mean a system having the “present capacity” to automatically store and dial numbers, other courts have found that even “potential capacity” – mere compatibility with autodialer equipment – may be sufficient. In 2015, the FCC even issued an order broad enough to qualify virtually any cellular phone as an “autodialer.” Recently, however, the D.C. Circuit Court of Appeals rejected that portion of the order as impermissibly broad. With several federal courts having indicated that they will look to the D.C. Court ruling for guidance on the issue, it is anticipated that the “present capacity” definition may prevail.
Either way, businesses who contact consumers telephonically should proceed with caution to avoid unintentionally running afoul of the TCPA. It is advised to seek clear written permission to place robocalls or “mass texts” to consumers. And, in the event a consumer who has consented to receive communications later indicates that he or she no longer wishes to receive them, it is imperative that the communications cease immediately. (A consumer may revoke consent at any time through any reasonable means.)
If you need assistance with issues pertaining to TCPA compliance, please contact Wright Beamer at (248) 477-6300 or visit our website.

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