On September 10, 2024, La Tropicana Food L.P. (“Defendant”) was sued in the United States District Court for the Northern District of California for allegedly violating the Internal Do Not Call (“DNC”) list compliance provisions of the Telephone Consumer Protection Act (“TCPA”). As our readers are aware, the TCPA was signed into law in 1991 to restrict certain telephone solicitations that may invade upon the privacy of United States consumers. The TCPA requires that telemarketing companies maintain a list of consumers that have requested not to receive any further telemarketing calls/texts from, or on behalf of, said companies. Failure to comply with internal DNC rules is a violation of the TCPA and creates a private right of action for the aggrieved to recover statutory damages.
In Hernandez v. La Tropicana Food L.P., Plaintiff alleged that he received a text message promoting Defendant’s grocery specials. Plaintiff replied by texting “STOP.” Plaintiff alleges that he received sixteen text messages from Defendant after sending this opt out request. The TCPA’s Internal DNC compliance provisions require, among other things, that companies institute procedures for: 1) creating a list of consumers who elect to opt out of the receipt of future communications; and 2) training their employees on how to honor such opt out requests. Because Plaintiff requested that his cell phone number be added to Defendant’s internal DNC list and Defendant continued to send him marketing messages, it would appear that each of the sixteen subsequent text messages may have been sent in violation of the TCPA’s Internal DNC provisions.
Key Requirements and Exceptions to Internal DNC Regulations
As an initial matter, it is important to note that the TCPA’s Internal DNC requirements are different from its National DNC registry provisions. Companies should also be aware that certain states have their own DNC registries that should be scrubbed against. With respect to internal DNC claims, once a consumer asks to be added to an internal DNC list, companies are generally prohibited from contacting the consumer again.
The internal DNC provisions of the TCPA further require that:
- Companies must place the consumer’s name, if provided, and telephone number on their internal DNC lists at the time the request is made;
- Companies must honor a consumer’s internal DNC request within 30 days from the date of such request;
- Companies engaged in placing artificial and/or prerecorded voice calls must have a written policy, available upon demand, for maintaining a DNC list; and
- Companies must train their personnel concerning the existence, and use, of their internal DNC lists.
Why is Hernandez Important to Your Business?
The Plaintiff in Hernandez alleges that he first requested that his cell phone number be placed on Defendant’s internal DNC list on July 26, 2023. As detailed above, he further alleges that, over the next year, he received sixteen additional text messages promoting Defendant’s grocery specials. Readers of this blog know that the TCPA allows for class members to recover damages of $500 to $1,500 per violation. Because this is a putative class action, Defendant is potentially liable for thousands of violations of the TCPA’s Internal DNC provisions. If the class is eventually certified, even at the statutory minimum of $500 per violation, Defendant faces an enormous judgment.
Against this backdrop, it is critical that companies maintain proper internal DNC compliance procedures. Telemarketers must also ensure that their personnel are well-trained in observing internal DNC consumer protections.
The attorneys at Klein Moynihan Turco regularly advise clients on DNC compliance and defend TCPA class action matters.
If you require assistance with telemarketing law compliance or related litigation defense, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information 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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