Telemarketing and text message marketing can serve as an effective and economical means to engage with prospective and current customers. However, lawsuits alleging violation of the main federal statute governing these forms of marketing, the Telephone Consumer Protection Act (“TCPA”), have exploded in recent years. The financial exposure associated with TCPA litigation can be substantial. Against this backdrop, the most sound advice that any experienced telemarketing attorney can provide to a business that plans to market through use of these media is to stress the importance of developing practices and procedures designed to: (i) minimize the risk that such a lawsuit gets filed in the first place; and (ii) maintain proper records that will ensure an effective defense in the event that a suit does get filed.
What are some key TCPA litigation defenses?
Businesses that find themselves defending TCPA litigation are often surprised at the various defenses available to them. Notwithstanding the fact that the TCPA is a consumer-friendly statute, there are many useful arguments that can result in a successful outcome for businesses that have been accused of violating the law. The following is a non-exclusive list of some major TCPA litigation defenses that are available to telemarketers:
- Consent – Proof of consent to contact consumers is generally an absolute defense to consumer TCPA claims. For this reason, it is critical that businesses obtain consent from all prospective call/text recipients prior to calling/texting them.
- Alternative Dispute Resolution – With strong documentation of lead-related records comes the greater likelihood that a business can compel a plaintiff to submit his/her claim to an alternative dispute resolution forum, such as arbitration. Of course, in order to do so, a business must take appropriate steps to make sure that its mandatory arbitration agreement is: i) properly set forth in its Terms of Use; ii) prominently displayed to consumers; and iii) affirmatively agreed to as part of the registration process. The ability to make sure that a TCPA claim is arbitrated instead of pursued in federal court is a very useful tool. Arbitration offers many benefits to businesses including, among other things, speed and cost efficiencies.
- Exceptions to Liability – Over the years, the Federal Communications Commission (“FCC”) has enacted a series of regulations as part of the TCPA implementation process. In addition to others, these regulations include certain carveouts that exempt from liability both particular classes of calls and calls placed by particular classes of entities. For example, certain calls placed by or on behalf of non-profit organizations may be exempt from TCPA liability. Additionally, calls placed in furtherance of collecting a government debt are currently exempt from the TCPA’s general prohibition against automated dialing. Readers of this blog will note, however, that the United States Supreme Court is currently reviewing the constitutionality of this exception.
- Dialing Equipment – Generally speaking, the TCPA’s prohibition on contacting customers involves unsolicited calls placed using an autodialer, or automatic telephone dialing equipment. In the years since the D.C. Circuit Court of Appeals vacated the 2015 FCC Omnibus Order in ACA Int’l v. FCC, legal battles have raged nationwide over the issue of what exactly a court will deem an “autodialer” for TCPA purposes. A stark split among the various circuits at the United States Court of Appeals level has emerged. While some circuits have picked up where the FCC left off, interpreting the term autodialer very broadly, others have opted for a narrower interpretation whereby equipment that dials numbers from a preloaded list is, by definition, not an autodialer. The breadth of the autodialer definition is obviously paramount in TCPA cases, because if a defendant can demonstrate that it did not use an autodialer when it placed the calls at issue, the underlying TCPA claim will fail.
TCPA Litigation Defense Continued
In today’s climate, even those businesses with the most robust compliance practices cannot eliminate the risk that they will be named in a TCPA lawsuit. Given the foregoing, all businesses in the marketing space should be working closely with experienced telemarketing counsel to ensure that they and their marketing partners remain compliant with evolving state and federal telemarketing laws
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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