January 2, 2019
The number of Telephone Consumer Protect Act (“TCPA”) lawsuits filed each year is staggering. Given the prospect of crippling financial exposure that TCPA litigation presents, formulating a sound approach to both prevent and defend these actions must be an active and ongoing part of the business strategy of any company that contacts consumers via telephone, text message or facsimile.
What are some key TCPA litigation defenses?
Recent TCPA compliance developments have strengthened existing, and created new, defenses to TCPA litigation. The following is a nonexclusive list of some major TCPA litigation defenses that may be available to telemarketers:
- Consent – Proper consent to contact a consumer is generally an absolute defense to the consumer’s claims that s/he was contacted in violation of the TCPA. To that end, a thorough analysis of records to determine whether you had consent to call should always be your first step in preparing a TCPA litigation defense.
- Dialing Equipment – Generally speaking, the TCPA’s prohibition on contacting customers involves calls placed using automatic telephone dialing equipment. However, following the D.C. Circuit Court of Appeals’ decision to vacate the 2015 FCC Omnibus Order in ACA Int’l v. FCC, the type of equipment that courts deem to be an “autodialer” within the meaning of the statute is in a state of flux. Given the foregoing, it is essential to understand the specifics of the type of equipment that you use to contact consumers. In general, the more human involvement that is used to initiate calls (send text messages) to consumers, the stronger the argument is that an autodialer was not used for TCPA purposes.
- Exemptions –TCPA regulations exempt from liability various types of calls and calls from some entities that would otherwise violate the TCPA. For example, certain calls placed by or on behalf of non-profit organizations may be exempt from TCPA liability. Additionally, if the subject call, text message or fax does not introduce an advertisement, but rather is purely informational in nature, the strict consent rules that govern TCPA-compliant calls are likely to be greatly relaxed or even inapplicable.
- Defeating a class action – Finally, even in those circumstances in which a valid TCPA claim exists, the named plaintiff may not necessarily be entitled to bring, or certify, a broad nationwide class of the sort that are often sought in TCPA litigation proceedings. There are myriad grounds to either narrow the scope of a class or resist certification entirely. By way of recent example, a United States district court in Florida in Wilson v. Badcock Home Furniture, 2018 U.S. Dist. LEXIS 213792 (M.D. Fla. Dec. 19, 2018) denied class certification in a TCPA litigation involving an automated call placed to the wrong number, ultimately concluding that the determination of which calls were placed without consent (as opposed to calls placed to wrong numbers where consent was obtained for the correct number) would be too individualized and inappropriate for a class action.
TCPA Litigation Defense Continued
The surest way to defend a TCPA litigation action is to make sure that you are never the subject of one in the first place. This involves working closely with experienced telemarketing and Internet marketing counsel to ensure that you and your marketing partners remain compliant with state and federal telemarketing laws. In today’s regulatory environment, however, TCPA litigation is all too frequent even for those that take all proper compliance precautions. Accordingly, if you find yourself a defendant in a TCPA litigation, don’t panic – there are usually various defenses to TCPA litigation claims.
If you need to review your telemarketing practices or are the subject of a TCPA litigation proceeding 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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