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Telemarketing Law

AT&T Asks SCOTUS to Stay Appeal Pending its TCPA Law Decision

by David Klein

For several years, courts across the country have struggled to define the term “Automatic Telephone Dialing System” (“ATDS”) within the context of the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA prohibits making calls or sending text messages “(other than a call made for emergency purposes or made with the prior express consent of the called party) using an [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.”  In the spring of 2020, the Seventh Circuit Court of Appeals, in Gadelhak v. AT&T Services, Inc., held that a device must either store or produce numbers using a random or sequential number generator to constitute an ATDS for TCPA liability purposes. In doing so, the Seventh Circuit contributed to the growing circuit split regarding the ATDS definition.  Gadelhak has since appealed the decision to the United States Supreme Court. Now, AT&T has asked the Supreme Court to stay Gadelhak’s appeal pending its anticipated decision on the same issue in Duguid v. Facebook.

What is the substance of the appeal?

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TCPA Law Ruled Unconstitutional

by David Klein

In a landmark decision that could have widespread and significant implications, the United States District Court for the Eastern District of Louisiana has ruled that the Telephone Consumer Protection Act (“TCPA”) was unconstitutional from 2015 to 2020.  In doing so, the Court vacated claims that TCPA law had been violated in connection with calls received during that time period. 

Why was the TCPA law ruled unconstitutional and what does it mean going forward?

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FCC Clarifies Scope of TCPA Fax Liability

by David Klein

The Federal Communications Commission (“FCC”) recently issued a declaratory ruling providing clarity on the scope of liability for fax advertisers under the Telephone Consumer Protection Act (“TCPA”).  The FCC’s TCPA fax ruling responds to broad concerns that advertisers unjustly assume the liability for fax broadcasters that exceed the parameters of the terms of their marketing agreements.  The new guidance clarifies that an advertiser is not a “sender” within the meaning of the statute where a fax is sent without the subject advertiser’s approval.

How did the FCC’s TCPA fax ruling clarify the scope of liability?

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Missed Call Leads to Craig Cunningham TCPA Victory

by David Klein

Those operating in the telemarketing space likely know of Craig Cunningham, a prolific filer of Telephone Consumer Protection Act (“TCPA”) lawsuits.  The sheer number of Cunningham TCPA cases brought in recent years has inevitably led to decisions that make law, some good and some bad insofar as the industry is concerned.  Recently, he prevailed in a decision issued by the United States District Court for the Eastern District of Texas that may make it more difficult for marketers to defend TCPA suits in that jurisdiction.

What are the implications of the Cunningham TCPA Decision?

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The Telemarketer’s Guide to Do-Not-Call Compliance

by David Klein

To launch a telemarketing campaign, businesses will need to build their contact lists with an understanding of how the National Do-Not-Call Registry works, how the list protects consumers’ rights, and the potential penalties associated with violating the regulations.

As people grow more attached to their phones, telemarketing has become an essential tool for reaching consumers. It is a convenient outreach tactic, but it may not be as simple to execute as merely contacting a list of phone numbers.

Consumer rights and choices play a major part in how telemarketers reach them. To safeguard these rights, several state and federal laws exist that advertisers must understand and abide by in order to run successful telemarketing campaigns.

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Telemarketing Restrictions During Emergencies

by David Klein

Over the last several months, telemarketers have confronted a new reality that forces them to understand the implications of declarations of public health and other emergencies issued by local, state, and federal governmental agencies.  Various jurisdictions have telemarketing restrictions that are triggered upon such declarations, making recent months and the foreseeable future a particularly tricky time to operate a telemarketing business.

What is an example of emergency-related telemarketing restrictions?

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The Telemarketer’s Guide: Consumer Disclosures

by David Klein

To help you understand how to sell to consumers through telemarketing, while complying with the law, we have created this guide for every telemarketer in order to understand consumer disclosures. The guide introduces the regulations of the Telemarketing Sales Rule.

If you are an advertiser who wants to reach consumers through a telemarketing campaign, you may be focused on how important your first impression will be with each consumer that you contact.

As a part of this first impression, you will need to respect your consumers’ legal rights. The benefits of reaching thousands of consumers efficiently, come with legal requirements meant to protect those consumers from receiving unwanted solicitations.

Beyond getting your marketing message across, your communications must include specific disclosures to protect consumers and avoid engaging in illegal solicitation. Running telemarketing campaigns requires familiarity with telemarketing laws and regulations.

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Telemarketing Contracts: Worth Your While Before You Dial?

by David Klein

Communicating with consumers via telephone and text messaging has been a popular tool for businesses for decades.  With the increasing need for social distancing brought on by the Covid-19 pandemic, however, and despite some state restrictions on telemarketing activities during this period of uncertainty, telemarketing has become an even more useful advertising and consumer outreach tool.  Businesses that have obtained the consent necessary to contact consumers via telemarketing can take advantage of this opportunity by entering into a telemarketing contract with call centers and marketing partners capable of assisting with the process.

Telemarketing contracts can be used to cover a variety of telemarketing-related relationships, including contracts with call centers that provide logistical support for a business’s internal campaigns, as well as third party database managers (or list managers) who can contact consumers with third party offers. Notwithstanding the attractiveness of this marketing method, it is crucial that businesses interested in pursuing these types of relationships, whether with list managers or list owners, ensure that the parties negotiate and enter into comprehensive telemarketing contracts that establish each party’s respective obligations, restrictions and standards of conduct.  In doing so, business owners can maximize revenue potential, while properly allocating risk and potential liability.  

Could a Telemarketing Contract Protect My Business?

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