In the marketing space, the Telephone Consumer Protection Act (TCPA) is dominating the headlines. By various accounts, TCPA lawsuits are up 40-60% in 2013, compared to the same period in 2012, and there appears to be no signs of this trend slowing any time soon.
DirecTV TCPA Lawsuit
On September 5, 2013, a TCPA lawsuit was filed against DirecTV, LLC (“DirecTV”), alleging that the satellite television provider placed multiple, unsolicited robocalls to consumers’ cell phones, offering its satellite television services. In several instances, it is alleged that pre-recorded messages were left on consumers’ answering machines. According to the complaint, DirecTV did not obtain express consent, written or otherwise, from any of the consumers contacted. Remember, beginning October 16, 2013, express written consent must be unambiguously obtained from consumers prior to making a marketing robocall. Moreover, it is alleged that consumers contacted DirecTV several times requesting not to be called again and that such requests went unheeded.
The class-action TCPA lawsuit is seeking damages of up to $1,500 for every call made to consumers in violation of the TCPA. The plaintiff alleges that the potential class size of consumers affected is at least 100,000 consumers across the country. The next hurdle for the plaintiff is to certify the class of consumers contacted by DirecTV in violation of the TCPA.
In light of the potential class size, and the strict compliance provisions of the TCPA, if the plaintiff’s class is certified, a settlement appears inevitable.
TCPA Penalties
What is interesting about this case is that Plaintiff is demanding $1,500 per TCPA violation, which is the maximum amount of statutory damages allowed under the TCPA. As you may recall, the TCPA provides for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited call and/or message. It appears that the plaintiff is requesting $500 for each negligent violation of the TCPA and also $1,500 for every robocall made after DirecTV was contacted by consumers requesting to be put on the company’s do-not-call list. While the amount of statutory damages awarded per violation is left to the judge’s discretion, judges have rarely awarded the maximum amount, unless there is clear evidence of willfulness or knowing misconduct on the defendant’s part.
TCPA Lawsuit Take Away
As we have previously stated on this blog, the best way for any marketer or advertiser to succeed in a TCPA lawsuit is to never be named in a TCPA lawsuit. For a brief description of how to handle a situation in which a TCPA action is brought against you, please see our post entitled, How to Defend a TCPA Lawsuit.
If you are marketing products or services directly or indirectly via text message or robocall, you should be working with experienced telemarketing counsel on a regular basis. Working with counsel fully familiar with the intricacies and nuances of the TCPA and telemarketing, to advise you about acceptable marketing practices on an ongoing basis, will go a long way toward making sure a class action complaint, or regulatory complaint, never gets filed in the first place.
This topic should be of interest to any company or individual engaging in a commercial venture within the United States, especially those involved in online and offline marketing, text message marketing, telemarketing, and/or consumer product industries.
If you are interested in ensuring that you are compliant with current regulations or if you are facing an investigation from the FCC or other regulatory agency, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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